Jury Selection in a Social Media Age
Much has been written on the risk-management side about the potential for sequestration violations by jurors armed with twitter, facebook and the like, as we’ve seen on Law.com and the National Law Review.
And, courts have begun to respond with mistrials for tweeting during breaks in trial and contempt charges for post-verdict status updates in poor taste.
But, to borrow from the title of a recent ABA-sponsored venire CLE for young lawyers, voir dire isn’t about ‘picking a jury’ it’s about knocking out bad juror candidates.
And there lies the potential utility of social media for a trial attorney during venire.
4 Tips for Using Social Media to Find Ways to Disqualify:
1. Educate the Judge.
As the recent oral arguments in City of Ontario v. Quon demonstrated, even the best legal minds may need some help when it comes to understanding communications technology, including social media.
In jurisdictions where questionnaires are allowed, a lawyer may request a ruling on whether a poll on social media use will be allowed. Support this request with a brief on the dangers to sequestration that social media use poses(perhaps citing some of the cases noted above) along with some basic information on what exactly a tweet or status update are. Keep the tone helpful, don’t try to give a history of the internet, and provide links to deeper background whenever technical ‘jargon’ is unavoidable. Having this on record will help prime the judge for challenges linked to anything dug up via steps 2-4.
2. Use Social Mention in tandem with Google.
Social Mention is a creeper’s dream, a search engine that scrapes status updates and recognizes the code associated with usernames, and therefore, an essential tool in 21st century venire. You can also setup real-time social alerts to monitor the jurors social media habits during breaks in proceedings.
3. Utilize Facebook group names and Twitter hash-tags for hot-button key-worded associations.
Fans of NBC’s 30 Rock will remember this scene:
Jack: Are you familiar with the GE tri-vection oven?
Liz: I don’t cook very much.
Jack: Sure… I gotcha. New York, third-wave feminist, college-educated, single and pretending to be happy about it, over-scheduled, undersexed, you buy anymagazine that says “healthy body image” on the cover, and every two years you take up knitting for … a week.
Pete: That is dead on!
Liz: What, are you going to guess my weight now?
Jack: You don’t want me to do that.
Jack’s not a mind-reader of course, he’s simply, to put it in his Sigma-6 lingo: leveraging the synergized integrative potential of market research as applied to human resource related face-to-faces. In other words, like a 21st century Sherlock, Jack Donaghy uses logic to ascribe likely trends in social and personal behavior to Liz, based upon outward indicators that GE had tied to those consumer habits.
Trial lawyers can use social media to do the same with a pool of potential jurors and their ‘likes’ and group memberships on Facebook or hashtags in tweets. For example, say you’re undertaking voir dire for a case involving a drunk driving accident. Simply Social Mention search “Jane Juror” and “#MADD”, “#SADD”, etc and see if a potential disqualification for cause pops up.
4. Do it in real-time.
Interns and summer associates can do more than copy and eat sushi on your dime. They’re likely as (if not more) social-media savvy as you. Use them to vet jurors online during open court voir dire. Once the judge, if in Federal Court or a State Court that has the judge conduct voir dire, asks for a show of hands of potential jurors who use social media, have an social-media competent assistant fire up the laptop and start the parallel vetting of all those with their hands up. For solo practitioners and small firm attorneys, this sort of online background research can easily be tasked to an intern, who would appreciate the chance to show what they can do, and most probably well.
Brian Lewis (http://www.brianjosephlewis.com) is an attorney and journalist, currently practicing in Mid-Missouri. He holds a J.D. from NYU School of Law and a B.A. from Yale. He enjoys cooking, researching developing legal systems and has been spotted at amateur comedy nights from time to time.