Voir Dire: To Google or Not to Google
By Jamila A. Johnson
A seasoned attorney packs his bags and shuffles out of the courtroom. He
knows that the jury selection will continue the next morning. In his hands
rest a stack of juror questionnaires. The million dollar question: Does
he search Google or a similar Internet search engine for more information
about the strangers who could decide his client’s fate?
The initial act of researching the lives of potential jurors is painless.
It is quick and inexpensive. With a click of a mouse, an attorney can have
a heap of information regarding potential jurors: socioeconomic information,
religious affiliation, education, and political campaign donations. With
two more clicks onto a blog or a social networking site, the attorney can
know details about the people in the juror’s life. “Eureka!” The
attorney’s mind jumps to how this insight should alter his opening
statement. Throw in a few dollars and the juror’s criminal background
is available.
The Hesitation
With all these benefits, it seems peculiar that attorneys would
think twice before “Googling” members of the potential
jury pool. Are there risks to performing Internet investigations
into the lives of potential jurors? U.S. District Judge David
Coar thought so in 2006 when he banned search engine inquiries
into the prospective jurors in the corruption trial of former
Chicago mayoral aide Robert Sorich and codefendant Tim McCarthy.
“I am not in favor of Googling jurors unless there is
some incredible need to do that,” said Pat Deady, attorney
for Tim McCarthy. He agreed with the court’s pre-voir dire
decision to prohibit him and his colleagues from investigating
the background of potential jurors. “No good can happen,” he
said.
Deady falls into one camp on the debate into juror research—the
camp that sees peril for the sanctity of the jury, in the abstract,
and the potential for a circus in the courtroom. But how can
more information be bad? To best understand Deady’s position,
picture yourself as an attorney in Chicago.
The “Tainted” Jury
Illinois has had more than its fair share of concerns over the
practice of investigating the lives of jurors in the technology
age. The most infamous involves the former Illinois Governor
George Ryan, who underwent a five-and-a-half-month trial for
corruption. After eight days of jury deliberation, reporters
from the Chicago Tribune uncovered public records suggesting
that two of the jurors had provided false answers on the jury
questionnaires. Convicted felons are barred from serving on federal
juries. Both jurors had records. The Court substituted alternate
jurors during deliberations, and Ryan was sentenced to six and
a half years in prison.
Earlier this year the Supreme Court refused, without comment,
to hear Ryan’s appeal that his jury was tainted. Not all
judges responded to Ryan the same way. Judge Reggie
Walton ruled in January 2007 that all potential jurors would
undergo criminal background checks in her courtroom during the
Lewis “Scooter” Libby Jr. trial.
It is possible that the more information the system has on a
potential juror, the better chance at a trial free from prejudice.
Then why are even those who favor investigation hesitant? There
is not enough precedent to define attorney conduct in this arena.
There is an unknown risk of jury tampering, professional responsibility
concerns, trial disruption, and respecting privacy. Without clear
decisions, this is a challenging landscape.
Jury Tampering
Jury tampering is a gross misdemeanor under the laws of each
state. Jury tampering in most states hinges on communication
with jurors. A person is guilty of jury tampering if, with
intent to influence a juror’s decision, he attempts to
communicate directly or indirectly with a juror other than
as part of the proceedings. An Internet search is unlikely
to be considered an attempt to communicate with a juror. That
does not mean that an attorney is completely free from caution
online. Neither attorneys, nor their agents, should e-mail
or post comments on websites that their jurors are known to
frequent.
Improper Influence over Jurors
A request for access to juror’s private sites may lead
to influence under RPC 3.5. If a juror has a private Myspace
or Facebook account, any attempt to view the private page would
require an electronic message requesting access. This is likely
an improper communication and influence. Attorneys should be
careful that investigation does not actively interact with
a juror’s web presence in a way that could lead to favor
or disfavor.
Discovering Bias
Parties have a right to the free judgment of a jury, unclouded
by bias, prejudice, or fixed or preconceived opinion. An investigation
into a juror may unearth grounds for excluding a juror for
these reasons. Prospective jurors can be removed for cause
if they possess a state of mind that satisfies the court that
the challenged person cannot try the issue impartially and
without prejudice.
Attorneys have a duty of candor to the court. The duty of
candor to the tribunal under the Model Rules of Professional
Conduct suggests that the attorney’s role is to present
evidence and argument so that the case will be decided according
to the law. When information is known, be it from any source,
that may prevent the case from being decided by law it is ethical
to inform a tribunal as soon as possible.
Benefits to the Profession
Respect for the privacy of the jurors is undoubtedly a concern.
No one wants his or her privacy invaded, and almost everyone
sneers at decreasing privacy in the information age.
Yet in some ways increased juror investigation may show
more respect for the individuality of jurors. For years the
practice of law has relied heavily on stereotypes during
jury selection. Data is published left and right discussing
whether married mothers are better jurors than single women
for cases against corporations, or whether men over 50 are
good picks for a jury trial about Social Security fraud.
There is tremendous potential with juror research to step
away from classifying individuals by these subcategories.
Instead, an attorney can look at a blog and say, juror 12
seems compassionate or juror 15 seems financially savvy.
The characteristics of the jurors are determined by their
actions online, and not by their membership in a certain
classification.
As that seasoned attorney unpacks his bags at his office
and looks at the questionnaires, it is apparent that the
decision to Google or not to Google is not clear-cut.
But inside the stack of juror questionnaires are individuals
and not categories like city dweller or grandmother. The
million-dollar question may not be whether to investigate
or not, but rather how to find moderation to increase, not
hinder, the chances of a fair trial.
Jamila Johnson practices in the area of civil
litigation at the regional law firm of Schwabe, Williamson
and Wyatt. She is a former editor of the Shidler Journal
of Law, Technology, and Commerce at the University of Washington
and the associate editor of DeNovo, the official
publication of the Washington Bar Association Young Lawyers
Division. She can be contacted at 206-407-1555, or jajohnson@schwabe.com.
Assistance was provided by Scarlett Hunter, a third-year
law student at Seattle University, clerking in the firm’s
Seattle office during Summer 2008.
Note
Originally published in the August 2008 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association.
© Copyright 2008, American Bar Association.
