As a federal lawyer, I have been recently asked to explain how prospective jurors’ social media and on-line information is relevant to voir dire process in federal criminal jury trials.
As an initial matter, any information that a federal trial lawyer can glean about the members of the venire is valuable because it can provide additional insight into the interests, motivations, biases, prejudices, and values of the prospective jurors. Any additional information is particularly valuable in light of the fact that the federal criminal jury selection process has become extremely limited and Judge-focused. What that means is that the role of federal lawyers in the voir dire process in many jurisdictions, including in the Northern District of Illinois, has become quite limited.
Federal courts now regularly rely on preliminary juror questionnaires as one of the primary bases for learning information about prospective jurors. Such questionnaires tend to be relatively limited, with the exception of highly publicized cases. Thus, those questionnaires often fail to ferret out much useful information about the prospective jurors. Moreover, federal court judges regularly limit the amount of follow-up questioning that federal criminal attorneys are allowed to engage in. As a result, quite often federal lawyers are called upon to use their “gut” instincts, biases, and prejudices to make selection decisions. This is not the way that it should be. Federal criminal attorneys should be given the opportunity to engage in a legitimate inquiry and dialogue with prospective jurors. This need not be for the purpose of “indoctrination,” but rather to obtain a more fulsome picture of the prospective jurors.
One way around this conundrum is for the attorneys to engage in what is essentially “on the fly” social media and internet research of the potential jurors in order to obtain additional information. This should not be necessary, but often is critically necessary, because of the above-described deficiencies in the voir dire process.
Accordingly, when attorneys in federal criminal law jury cases are met with opposition from Judges who attempt to bar such on-line inquires, federal lawyers can make a number of arguments in support of on-line research being permitted. Thes arguments include:
- Federal criminal attorneys should be allowed to conduct on-line research of the prospective jurors because it is ethically proper. Indeed, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466 (hereinafter “Opinion”) with respect to this issue. In short, in the Opinion, the ABA found that it was proper for a lawyer to “review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.” In the Opinion, the ABA also reached the common sense conclusion that a lawyer “may not communicate directly or through another with a juror or potential juror” through social media or otherwise in making such inquiry. The New York City Bar’s Formal Opinion 2012-2 reached the same finding. Moreover, the Opinion was issued in 2014. There is no question that the use of social media by prospective jurors, and the volume and depth of information now available about them, has exploded since 2104. Accordingly, there is simply no legitimate reason to ignore this wealth of information about prospective jurors, and no reason to bar the attorneys from accessing and reviewing it.
- Prospective jurors expect that attorneys will review their on-line information as part of the jury selection process. See “Using Social Media & Other Background Research in Voir Dire” (Vinson & Company) (2016); see also “Social Media in July Selection: Good or Bad?” (Jury Selection, Law Technology) (Jan. 13, 2021). Indeed, all members of society now know that virtually anyone, ranging from potential employers, employers, and prospective dating partners will review their on-line presence, including their social media and other publicly available information. Thus, in light of that expectation, and the normalcy of reviewing individuals’ available on-line information on a day-to-day basis, there is no legitimate reason to bar attorneys from accessing that same publicly available information. See also Carino v. Muenzen, Case No. A-5491-08T1, 2010 WL 3448071, 4 (N.J. Super. Ct. App. Div. Aug. 30, 2010) (finding that trial court abused its discretion in prohibiting counsel from using his laptop to research potential jurors during voir dire).
- Furthermore, allowing the attorneys to engage in on-line research of potential jurors also addresses the importance concern of potential dishonesty by members of the venire during the voir dire process. Indeed, juror dishonesty during voir dire—and its consequences for all involved in the justice system—is an issue commanding increasing attention. Recently, a judge in Florida proposed that online searches of jurors’ backgrounds be required so that trial lawyers can bring any withheld information to the court’s attention before the start of actual trial. Pinellas Circuit Judge Anthony Rondolino made the comments while denying a motion for new trial in the case of an 84-year-old woman who fell and died in the stairwell of an assisted living facility. The woman’s estate sought $15 million, only to have a six-person jury find no negligence on the part of the facility. After trial, the plaintiff’s lawyers did online research and found that all six jurors had failed to disclose their own civil litigation history. Collectively, this included three bankruptcies, two foreclosures, an eviction, a child support action, a paternity suit, five domestic violence cases, a declaratory judgment, an appeal, and a contract lawsuit. Observing that there was “plenty of time to gather the information” during the two-week trial (including a three-day period when the court was recessed), Judge Rondolino proposed that lawyers be required to conduct online research and raise any objections after jury selection, but before trial. Such a process would avoid handing lawyers a “gotcha card” in which they could wait and see how the verdict turned out before choosing to come forward with the results of online research. See American Bar Association, Tort Trial and Insurance Practice Section, “Voir Dire Becomes Voir Google: Ethical Concerns of 21st Century Jury Selection” (April 25, 2019) (John G. Browning) (emphasis added).
- Attorneys may even be found to have failed to meet their duty of representation to their clients by failing to adequately investigate potential jurors, including by way of on-line research. See Journal of Race, Gender, and Ethnicity (Volume 9 – May 2020 Touro College Jacob D. Fuchsberg Law Center, ETHICAL CONSIDERATIONS FOR ATTORNEYS RESEARCHING JURORS ON THE INTERNET (Anthony M. LaPinta (“there is at least the potential for malpractice suits arising from an attorney’s failure to conduct some form of internet research of jurors”).
In sum, federal criminal trial lawyers must continue to fight to be allowed in a legitimate and meaningfully voir dire process, which necessarily should include an examination into the prospective jurors’ on-line presence and activities.
Leonard Trial Lawyers
December 27, 2022