Social Media Research and the Jury
By: Dianna Baker Shew, Assistant General Counsel, CORRECTIONS CORPORATION OF AMERICA, Nashville, Tennessee; Marygrace Schaeffer, Vice President, DECISIONQUEST, Minneapolis, Minnesota; John R Tarpley, LEWIS THOMASON, Nashville, Tennessee, email@example.com; Joseph R Swift, BROWN & JAMES P.C., St. Louis, Missouri, firstname.lastname@example.org; Jorden Rutledge, BROWN & JAMES P.C., St. Louis, Missouri, email@example.com; David Binder, Group Risk Management, NESTLE in NORTH AMERICA, NESTLE USA, Stamford, Connecticut
“Jurors are like icebergs – only 10 percent of them is what you see in court. But you go online and sometimes you can see the rest of the juror iceberg that’s below the water line.”1
“Voir dire is often considered the most crucial phase in the trial as it is the only opportunity parties have to examine potential jurors and ascertain their beliefs.”2 And, as some have argued, these beliefs, which jurors inevitably bring with them to trial, “influence the eventual verdict as much, if not more than, the evidence presented at trial.”3 With the stakes of empaneling a sympathetic jury so high, it is not surprising that attorneys have grasped at whatever advantage they can to find a more perfect jury.
The newest frontier on this endeavor is social media. With the recent explosion of social media, and individuals sharing more and more about themselves on public forums, attorneys can find more case-specific information about a potential juror than ever before. This article begins by briefly discussing the history of jury selection, then moves on to the legal and ethical standards of social media research; next we will discuss the benefits and pitfalls of such research on potential jurors, and finally we will discuss the potential of using social media research after a jury is empaneled.
A Brief History of Voir Dire
Historically, lawyers approached jury selection with little more than their wit and intuition at their disposal. Attorneys often used rules-of-thumb which ascribed demographic characteristics to likely verdict behavior. Examples of typical advice include to “avoid jurors with crossed arms or ‘fidgety’ mannerisms and to favor those who smile.”4 Some defense attorneys sought “jurors who are round-faced, jolly, and overweight rather than those who are thin and delicate.”5 While those representing civil plaintiffs “should look for those who are married, but avoid Scots, as ‘no McTavish was ever lavish.’”6 Not surprisingly, these notions are not supported by empirical research.7
Jury selection changed with the 1971 Harrisburg Conspiracy Trial, and the advent of “scientific jury selection.”8 The Harrisburg case, involving seven anti-war protesters charged with plotting to kidnap Henry Kissinger (among other things), was the first major instance that “researchers used statistical analysis to determine if any demographic characteristics were significantly related to case-specific attitudes.”9 The analysis indicated that religious affiliation and education were significantly related to attitudes toward the case. The researchers provided profiles of desirable and undesirable jurors, which allowed the defense to use their peremptory challenges more effectively.10 The jury hung, and the defendants were acquitted.
Legal and Ethical Standards “The Rules”
“[T]here are precious few decisions addressing … whether counsel should be allowed to conduct Internet and social media research about prospective and empaneled jurors.”11 Under the Federal Rules of Civil Procedure, the scope, duration, and nature of voir dire is largely left to the discretion of the trial court.12 With the lack of any hard-and-fast rule regarding voir dire courts and bar associations have drafted opinions and created rules to fill the void.
With no hard and fast rules, trial judges are fashioning case by case decisions. In Oracle America v Google13, the United States District Court for the Northern District of California requested the parties to voluntarily refrain from social media investigations in exchange for additional time to conduct voir dire. The court’s reasoning was: 1. Jury research could encourage disobedience of the court’s admonitions; 2. Counsel could take advantage of the information discovered, for example by crafting arguments based upon a juror’s favorite book or movie; and 3) juror privacy could be threatened.
The American Bar Association has addressed attorney review of jurors’ Internet presence in the form of an ethics opinion. These opinions give lawyers advice concerning their ethical obligations and, although not binding, the ABA’s ethics opinions are highly persuasive. The ABA position is that, “Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include posting by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or a potential juror.”14
The ABA opinion divided attorney review of a potential juror’s online presence into three categories: (1) passive review, of which the individual is unaware – reviewing public media without the individual knowing; the illustration is a lawyer driving down a street to see where a prospective juror lives; (2) passive review which notifies the individual, the analogy here is like a neighbor recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer has been seen driving down the street; and (3) sending an “access” or “friend request.” This part is analogized to the lawyer driving down the juror’s street, stopping the car, getting out, and asking the juror for permission to look inside the juror’s house because the lawyer cannot see enough when just driving past.15 According to the ABA, the first two scenarios do not constitute a communicative act that violates Rule 3.5(b)16 (the ban on ex-parte communication with a juror), while the third scenario does constitute a communicative act, and therefore violates ethical rules. However, not all states have adopted this opinion, and some, like New York, have held that passive review which notifies the individual (scenario two) is a prohibited ex-parte communication.17 Accordingly, counsel should be aware of their local rule, and whether their search notifies the individual (as is the default setting for LinkedIn).
A separate but developing line of authority has indicated not only that Internet research on potential jurors is allowed, but may actually be required for lawyers to meet their requisite standard of care. For example, Missouri requires that lawyers use “reasonable efforts” to find potential juror’s litigation history on Case.net, Missouri’s automated case management system, or potentially forfeit challenging a verdict for juror non-disclosure.18 New Hampshire’s Bar Association stated that lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation”19 and, according to New York’s Bar Association, “the standards of competence and diligence may require doing everything reasonably possible to learn about jurors who will sit in judgment on a case.”20
Another developing area involves what, if any, obligations attorneys have once harmful information is found on potential (or current) jurors, and how courts and lawyers are to handle this information.
ABA Model Rule 3.3(b) requires an attorney to take reasonable remedial measures, including, if necessary, disclosure to the court, if counsel knows a person “has engaged in criminal or fraudulent conduct related to the proceeding.”21 ABA opinion 466 (above) cites Rule 3.3(b), but does not offer much guidance regarding what is “criminal or fraudulent,” or what is required of lawyers regarding juror misconduct which falls short of this standard. Of note, if a juror makes social media posts which rise to the level of contempt of a court order, counsel are required to take remedial measures, which may include disclosure to the court. However, determining whether a post meets the elements of contempt, or other criminal statute, “will depend on the lawyer’s assessment.”22 “In other words, according to the formal opinion, attorneys are on their own.”23 Attorneys should therefore be cognizant that if their social media research indicates that a juror, or prospective juror, is violating a court order (for example, openly discussing the case), or committing a crime (lying in voir dire), they may be required to disclose this information, even if the juror is viewed as sympathetic to the attorney’s case.
If, after or during a trial, counsel discovers a juror was not honest during voir dire, and seeks a new trial they “must do more than raise a speculative allegation that the juror’s possible bias may have influenced the outcome of the trial." Rather a party must first demonstrate that the juror failed to answer honestly a material question …, and then further show that a correct response would have provided a valid basis for a challenge for cause.”24 Accordingly, a lawyer cannot claim they would have used a peremptory challenge as a basis for a new trial for non-disclosure, rather, the challenger must meet the stricter “for-cause” standard.
Benefits and Pitfalls of Social Media Research
Sixty-nine percent of adult Internet users use social networking websites, and almost half—48 percent —use social networking sites on a daily basis.25 Another estimate is that 74 percent of all adult Americans have at least one social networking profile. Twitter processes over half a billion tweets a day.26 You have to look no further than the election of Donald Trump to recognize the impact of Twitter.
With people sharing more and more personal information every day, it is obvious why attorneys have sought to raid this cache of information in hopes of benefiting their clients. In many cases potential jurors are much more open on social media than they would be in the rigid, formal structure of a courtroom. Furthermore, because courts have immense discretion regarding voir dire, judges can legitimately block attorneys from asking jurors certain questions, such as asking about political affiliation.27 Social media research may answer the question the court prohibits you from or you are afraid to ask.
If used properly, social media research can help shape your jury into one more sympathetic to your client and cause, but it is important to know how to use such research properly, and not fall into the old traps of stereotypes and baseless assumptions.
One important lesson is that, in a broad sense, there is little correlation between demographic characteristics or personality variables and juror verdicts.28 What this means is that there is no catch-all rule that applies in all cases, such as “middle-aged women are plaintiff-friendly.” It also means an open-ended approach to voir dire should be taken to get them to talk. As others have noted, “[T]raditional views of juror types, based almost entirely on obtuse stereotypes, are quite often wrong.”29 Rather, “whether or not a juror characteristic has an impact depends heavily on characteristics of the individual case.”30 For example, belief in a “litigation crisis” can be predictive of both verdict and damages. In one study, jurors who believed in a litigation crisis tended “to be more favorable to defendants, especially corporate defendants, and more skeptical of claims made by individual plaintiffs.”31
Another instance where conventional wisdom has proven incorrect is in the traditional strategy of selecting jurors who are similar to your client, particularly defendants. “[S]tudies indicate that jury selection based on similarly to the defendant is not wise” in particular cases “in which the defendant has behaved in a particularly heinous manner or in a racially charged trial with a Black defendant.”32 This research indicates that attorneys should look at case-specific issues – whether the charge is “heinous” and whether race/identity is a central issue in the case – in determining whether to select jurors of the same group. If the allegation against your client is particularly heinous, constructing a jury from similar group may not be wise. And if race is a central issue in a case, it may be wise to select jurors from outside the group. This does not just apply to race, it can apply to religion, ethnicity, or community, and much of this information can be found via social media.
Some examples of how attorneys have used social media in voir dire are instructive. One plaintiff’s attorney found that a potential juror was an owner of two small businesses, his favorite book was the Bible, and he “likes” Newt Gingrich and Sarah Palin. “These indications that the man is conservative troubled [the attorney] because it could mean he’s inclined to consider lawsuits against companies to be frivolous.”33 Another example occurred when a consultant working a product-liability case for the defense struck a potential juror who posted on Facebook that one of her heroes was Erin Brockovich, the crusading paralegal known for her work for plaintiffs in environmental cases.34 One plaintiff’s attorney, in a products liability case involving a worker who was injured after being forced to get inside a machine to clean it, “hit pay dirt when she found out that one of the jurors divulged on his MySpace page that he belonged to a support group for claustrophobics.” The juror became the foreman, and the plaintiff prevailed.35 One extreme example occurred after the jury was sworn-in, in a product-liability case. A defense attorney discovered via Facebook that a juror linked to multiple websites highly critical of big corporations. The defense successfully argued that that the juror should be removed from the case because he had hidden his anti-business sentiments during jury selection, and the judge agreed. “I’m going to err on the side of anybody that stinks at all of prejudice is not going to sit on the damn jury.” Judge Jack Grate said.36 The jury returned verdict in favor of the defense, nine to three.
The above examples are illustrative as specific instances where information gleamed from social media was used to show case-specific bias. Granted, the mere fact that someone likes the Bible and is a member of a particular party does not necessitate that he is adverse to litigation, but it places such an assumption on more firm ground than most traditional voir dire questions would allow, and is certainly more predictive than the traditional, more generalized and stereotypical, approach. Furthermore, if opposing counsel did not perform a diligent search, or failed to create an ideal juror profile, they may unintentionally strike such a juror for you, or fight you with less fervor on one you attempt to strike.
Attorneys should create a list of case-specific characteristics of an ideal juror, or “target market,” as well as a list of characteristics of jurors which would be prime candidates for a strike. These should be as specific to the case a possible, and avoid the trap of generalities which plagued prior jury selections. Then, attorneys should mine the Internet for information on prospective jurors. This should not be limited to Google or Facebook. Practicing attorneys have used “consumer complaint websites, arrest records, personal blogs, online newspapers, letters to the editor, online petitions, campaign contributions, club membership pages, and online public records” to obtain as much information as possible.37 “Some practitioners even advocate asking prospective jurors about their Internet usage so attorneys can narrow the focus of their research.”38 With a large majority (88.3 percent) of courts providing juror names to attorneys prior to voir dire, attorneys should have enough time to comb at least some of these sites for information.39
With the potential benefits of social media research discussed above, it is important to keep in mind pitfalls that can befall an unsuspecting attorney. First, in cases of a common name, attorneys should make sure they are searching for the actual juror that is on the case or panel. This can be done by limiting searches geographically, corroborating hits with other information provided by the juror, or corroborating the discovered account with other, more reliable, social media accounts. Second, as a corollary to the idea that people are “more open” online, in some cases people post a more ideal version of themselves than exists in real life. “There are a number [of] people who post who they want to be, as opposed to who they are.”40 Accordingly, attorneys should take some information they find with a grain of salt.
Thirdly, jurors may resent attorneys they know are investigating them, and a juror’s “fear or resentment of the investigating party may influence their verdict.”41 Interestingly, younger “digital natives,” “are less surprised and bothered by online investigations than their older counterparts.”42 Some courts have addressed this issue, and, while admonishing jurors not to use social media or the Internet during trial, told the panel that both litigants would be performing online searches of the jurors.43
The final pitfall an attorney can fall into is making improper appeals via jury arguments and witness examinations patterned after jury preferences found through Internet searches. For example, “If a search found that a juror's favorite book is "To Kill A Mockingbird," it wouldn't be hard for counsel to construct a copyright jury argument (or a line of expert questions) based on an analogy to that work and to play upon the recent death of Harper Lee, all in an effort to ingratiate himself or herself into the heartstrings of that juror.”44 Similar appeals could be made with quotes, politics, or religion. At least according to one court, it would be “out of bounds to play up to a juror through such a calculated personal appeal.”45 Attorneys should therefore be cognizant of their analogies and quotations, and not use information learned from internet searches to influence jurors.
Continuing Social Media Research During and After Trial
Tangentially related to our topic is the issue of jurors using social media during trials, and attorneys continued Internet research throughout a case. As others have declared, “continued social media research throughout a trial is critical to ensuring a fair process.”46 Keeping tabs on empaneled jurors’ use of social media could provide evidence that they lied during voir dire, and give an attorney a second bite at trying to strike them for cause. Jurors’ forays into social media can result in mistrials, appeals, or overturned verdicts.
Some examples are both comical and informative: In Florida a manslaughter conviction was overturned when a foreman googled the definition of “prudent.”47 Another juror was dismissed in a robbery case for blogging that the prosecutor was “Mr. Cheap Suit.”48 In Arkansas, a murder conviction was reversed because counsel “discovered that a juror explicitly ignored court instructions and tweeted on numerous occasions during trial and jury deliberations.”49 And, a case in Tennessee was remanded when it was discovered that a juror and a witness had exchanged Facebook messages during a trial.50
These cases illustrate that juror misconduct has fresh new ground to grow and spread with the proliferation of social media. Furthermore, the cases illustrate that the proper remedy is largely dependent on the timing of the post/discovery. If a juror posts something against a court order during trial, for example, she is likely to be dismissed, but the case will move on. If offensive online activity is brought to the court's attention after the trial, reversals or new trials may be in order. However, some courts have stated that they will not allow litigants to “wait until a verdict has been rendered to perform” an Internet search of the jurors.51 With this developing case law, it would be prudent to bring up any potential misconduct as it occurs, and not sit on information that could potentially cause a mistrial. And, as mentioned above, it may be an attorney’s ethical duty to inform the court of potential juror misconduct, regardless of whether the juror is perceived as favorable to the attorney. So, as a word of caution, be careful what you search for.
As more and more of our lives are broadcast over the Internet, the potential for attorneys to gain a strategic advance, and violate ethical rules, will continue to increase. Research of jurors’ social media profiles has, or will quickly become, the norm, and attorneys should add being a proficient online researcher, and jury consultant, to their repertoire of trial skills. With this new skill-set comes potential pitfalls, and as technology progresses and rules emerge, lawyers are advised to remain vigilant.
1 Brian Grow, Internet v. Courts: Googling for the Perfect Juror, Reuters, Feb. 2011.
2 Rachel Hartje, A Jury of Your Peers?: How Jury Consulting May Actually Help Trial Lawyers Resolve Constitutional Limitations Imposed on the Selection of Juries, 41 Cal. W.L. Rev. 479, 482 (2005).
3 Id. at 497.
4 Caroline B. Crocker & Margaret Bull Kovera, Handbook of Trial Consulting, 15 (2011).
10 Id. at 16.
11 Oracle Am., Inc. v. Google Inc., 172 F.Supp3d 1100, 1107-1108 (N.D. Cal. 2016).
12 Fed. R. Civ. P. 47.
14 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 466, 1.
15 Id. at 4
17 Ass’n of the Bar of the City of N.Y. Comm. on Prof’l Ethics, Formal Op. 2012-2.
22 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 466, 9
23 Robert T. Watson, To Post or not to Post, DRI for the Defense (2015).
24 Picard v. Buoniconti, 2016 WL 634066, at *2 (D. Mass. Feb. 17, 2016).
25 Eric P. Robinson, Virtual Voir Dire: The Law and Ethics of Investigating Jurors Online, 36 Am. J. Trial Advoc. 597 (2013)
26 John Browning, Voir Dire Becomes Voir Google: Ethical Concerns of the 21st Century Jury Selection, The Brief Vol 45 No 2 (2016)
27 Brian Grow, Internet v. Courts: Googling for the Perfect Juror, Reuters, Feb. 2011.
28 Caroline B. Crocker & Margaret Bull Kovera, Handbook of Trial Consulting, 17 (2011).
29 Ashley R. Nance, Social Media Selection: How Jury Consultants Can Use Social Media to Build A More Favorable Jury, 39 Law & Psychol. Rev. 267, 269 (2015)
30 Katherine V. Vinson, Mark A. Costanzo, & Dale E. Berger, Predictors of Verdict and Punitive Damages in High-Stakes Civil Litigation, Behavioral Science and the Law, 184 (2008).
31 Id. at 182
32 Caroline B. Crocker & Margaret Bull Kovera, Handbook of Trial Consulting, 21 (2011).
33 Brian Grow, Internet v. Courts: Googling for the Perfect Juror, Reuters, Feb. 2011.
34 Brian Grow, Internet v. Courts: Googling for the Perfect Juror, Reuters, Feb. 2011.
35 Julie Kay, Social Networking Sites Help Vet Jurors, National Law Journal, Aug. 13, 2008.
36 Brian Grow, Internet v. Courts: Googling for the Perfect Juror, Reuters, Feb. 2011. Khoury v ConAgra Foods, Inc. 368 S.W. 3d 189, (Mo. App. W.D. 2012).
37 Adam J. Hoskins, Armchair Jury Consultants: The Legal Implications and Benefits of Online Research of Prospective Jurors in the Facebook Era, 96 Minn. L. Rev. 1100, 1109 (2012).
39 Eric P. Robinson, Virtual Voir Dire: The Law and Ethics of Investigating Jurors Online, 36 Am. J. Trial Advoc. 597, 606 n.45 (2013)
42 Ashley R. Nance, Social Media Selection: How Jury Consultants Can Use Social Media to Build A More Favorable Jury, 39 Law & Psychol. Rev. 267, 272 (2015).
43 Oracle Am., Inc. v. Google Inc., 172 F. Supp. 3d 1100 (N.D. Cal. 2016).
44 Oracle Am., Inc. v. Google Inc., 172 F. Supp. 3d 1100, 1103 (N.D. Cal. 2016).
46 Zachary Mesenbourg, Voir Dire in the #lol Society: Jury Selection Needs Drastic Updates to Remain Relevant in the Digital Age,
47 J. Marshall L. Rev. 459 (201347 Brian Grow, As Jurors Go Online, U.S. Trials Go Off Track Reuters, Dec. 8, 2010.
49 Zachary Mesenbourg, Voir Dire in the #lol Society: Jury Selection Needs Drastic Updates to Remain Relevant in the Digital Age, 47 J. Marshall L. Rev. 459, 473 (2013).
50 State v. Smith, 418 S.W.3d 38, 42 (Tenn. 2013).
51 Johnson v. MCullough, 306 S.W.3d 551, 559 (Mo. 2010).