Know the Jury Before Walking Into the Courtroom
Posted by Wetherington Law Firm | Articles
Practice Tips: Guide to Juror Research (2016 Update)
By: Matt Wetherington and Sherry Rosen
During voir dire, prospective jurors are generally responsive to thoughtful questions and speak candidly and enthusiastically about preexisting beliefs and biases. Just kidding. In most cases, open and honest panel members are among the first to receive a preemptive strike. This often leaves the trial team selecting jurors that have responded to very few questions. In a worst-case scenario, there is an enthusiastic debate about whether the ‘school teacher that smiled at someone’ is better than the ‘secretary that said her son worked for an insurance company sometime in the eighties.’ Effective online research of the jury panel can help inform juror selection and avoid selecting jurors that will not fairly weigh the evidence presented in the case.
Courts and bar associations across the country have embraced online research of prospective jurors. In 2012, the New York City Bar Association issued a formal opinion stating that failure to perform online research of prospective jurors may be tantamount to malpractice.[1] “[S]tandards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case.”[2] Courts in Missouri and Florida have offered similar opinions.[3] Wisconsin courts have even embraced the notion that online research can be a strong defense to a Batson Challenge.[4]
Although online research is a powerful tool, it also presents risk when not performed appropriately. Ineffective research wastes time and may present ethical violations for the attorney responsible for the work. This article will present best practices for online research and how to avoid violating local ethics law.
ETHICAL BOUNDARIES
Because an attorney owes a duty of thoroughly preparing a case for a client, the trial team must use all of the resources available, including online juror research. Model Rule of Professional Conduct (MRPC) 3.5 provides an outer boundary for this research by stating that a lawyer, or his or her agent, shall not attempt to influence and/or communicate ex parte with a juror or prospective juror unless authorized by law or court order. Thus, an attorney is authorized to perform online research, but must not do so in a way that communicates with a prospective juror or otherwise may unduly influence a prospective juror.[5]
What Constitutes a Communication?
Any attempt to view the prospective juror’s private page that requires authorization (such as a friend request) is likely to be viewed as an inappropriate “direct” communication under MRPC 3.5.[6]
In interpreting the “indirect” communication portion of rule, some state bars have stated that a communication has occurred if a social media website automatically notifies a juror when another person has viewed the juror’s profile page.[7] LinkedIn, for example, will notify a user regarding who has viewed the user’s profile. To avoid this communication, it is important that to log out of a personal account whenever possible prior to conducting juror research.
SEARCH METHODS
The first step in performing juror research is obtaining a list of potential jurors. Most courts publicly provide juror lists either through the clerk’s office or by publishing the list in a local newspaper. To help facilitate receiving the list of prospective jurors in a timely fashion, consider asking the court to enter an order allowing access to the juror pool list at the time of first publication.[8] In support of such a motion, counsel may point out that some states, such as Florida, have concluded that an attorney has a right to perform a background check on potential jurors whenever possible.[9]
“Where possible, trial judges should allow counsel to check [public] records, if such a request is made, and it can be done without unwarranted delay. Certainly a small delay at the beginning of a trial would be better than having to do a retrial of a case after it has been concluded.”[10]
Once a juror list is obtained, the research begins. But, prior to a discussion of the nuts and bolts of performing online research, it is important to understand a couple of general points. First, online research is often tantamount to finding a needle in a haystack. There will be many false positives and most accurate search results will yield little, if any, helpful information. However, one piece of information could be the difference between winning and losing at trial.[11] Avoid wasting time on false positives by adding geographic filters to a search, such as the city and state whenever possible.
Second, a primary goal in juror research should be to find usernames of jurors. A Google search of “Jane Doe” may yield some helpful results, but “Jdoe31” will almost always reveal more. As discussed below, many social media websites link the username and real name together. These site are particularly helpful for locating unique usernames. Attorneys can also use a data aggregation website like TLO or MyLife.com, which automatically links full names and usernames without any input from a user.
Search for a person on MyLife.com and look for a URL name that is something other than numbers. Then, perform a search using that username to identify other resources.
Search Engines
Google.com, Yahoo.com, and/or Bing.com[12] will be the primary vehicles for conducting basic searches for a potential juror’s name and/or username. The only point here is to understand that most search engines use Boolean logic to determine what results to display. “John Doe,” “Doe, John,” and John Doe (without quotation), will each reveal unique results that may not be shared among them. You can use excel formulas to create a search hyperlink to easily search for multiple people:
Formula: =“https://www.google.com/search?as_q=”&{STATE}&“&as_epq=&as_oq=%22”&{FIRSTNAME}&“+”&{LASTNAME}&“%22+%22”&{LASTNAME}&“+”&{FIRSTNAME}&“%22”
Similarly, use the plus (+) or minus (-) symbols to include or exclude certain terms, such as +Jonesboro or –Cairo.
Add the local newspaper for more fun:
=“https://www.google.com/search?as_q=”&{STATE}&“&as_epq=&as_oq=%22”&{FIRSTNAME}&“+”&{LASTNAME}&“%22+%22”&{LASTNAME}&“+”&{FIRSTNAME}&“%22”&“as_sitesearch=”{ajc.com}
In addition to the big three search engines, ZoomInfo.com will also provide additional results for working professionals.
Social Networking Websites
Facebook.com
Facebook.com is the largest social media website on the Internet. Recent statistics indicate that a majority of United States citizens have a Facebook account and more than 70% of Internet users maintain a Facebook account.[13] Despite its large user base, less than one-third of all Facebook users have some form of privacy protection for their profile. This means that most of the results found during juror research will be inaccessible. Nonetheless, even when a user has his account on complete lockdown, it is still possible to obtain the username for the person by viewing the blocked profile page. Facebook refers to its usernames as “vanity names.” The vanity username appears in the address bar and will look like: http://www.Facebook.com/myusername. You can use this username to find other profiles that may not have the same privacy settings.
Myspace
MySpace.com’s user base has dwindled from tens of millions of users to less than a million over the last five years.[14] This is good news for the savvy Internet researcher. User accounts on MySpace generally do not disappear once a user has stopped logging in. Most Myspace accounts have little or no privacy activated. Photo albums, “lifestyle surveys,” and more are easily accessible using the main search box on the homepage and then narrowing down based on geography. Myspace.com should be searched independently, because search engines do not index all of the profile pages on Myspace.
Most Twitter users do not use high privacy settings because the website is designed to encourage communication between strangers. However, searching on Twitter can be difficult for a couple of reasons. First, most user do not use their real names. Second, it requires clicking through multiple pages to reach a page that is searchable by name.[15] If you have already found a username from the methods discussed above, finding an associated twitter account is relatively easy as all usernames are indexed by, and easily searchable through, Google.
Instagram started as a smartphone photo app and expanded to an online platform in recent years. Most users link their Instagram and Twitter accounts – supplementing text tweet with images from Instagram. Click a photo in a user’s tweet to potentially locate his or her Instagram account. Alternatively, use the person’s Twitter or Facebook username to locate their account. Instagram offer a first and last name user search, which can be helpful. Like Twitter, very few users (less than 26% in 2014) have limited access to their accounts.
LinkedIn.com is primarily used by professionals. The vast majority of information you can find on LinkedIn will also be found on a person’s corporate biography page found through Google. However, the “Groups” a user subscribes to may provide helpful information in focusing your research.
Pinterest.com is a relatively new and rapidly growing social media website that allows users to “pin” articles, photos, and links that they find interesting. Like Twitter, Pinterest has few privacy settings and most users do not activate them. Many Pinterest accounts are not indexed by Google, so it will be necessary to create an account with Pinterest if you choose to include it in your research. We have not found the site to be very helpful.
Background Search Resources
Lexis and Westlaw
Lexis and Westlaw each offer a pay service that offers background research on prospective jurors. Both of these services provide basic information on address history, criminal records, household members, civil lawsuits, and other public records. Most Lexis/Westlaw account representatives will offer a free tutorial on accessing and using these resources.
State Department of Corrections
Many state Department of Corrections offer a website that allows searching past and present incarceration records. If a result is found, the website will display comprehensive information about the conviction and will even have prior mugshots available. For example, in Georgia, you can search for mugshots at: http://www.dcor.state.ga.us/GDC/OffenderQuery/jsp/OffQryForm.jsp?
Spokeo
Spokeo.com is a data mining company that tracks a variety of social media websites, including Facebook, MySpace, YouTube, and Twitter. Spokeo will also list property records associated with the user and information about other people who live in the same household. Simply type in a name or email address and perform a fairly deep search of social media accounts. A basic subscription to Spokeo starts at $24 for six months.
TLO
TLO.com was created as a “next generation” version of Intelius. TLO reports all of the information contained in the above reports, but also adds in social media accounts, email addresses, and vehicle registrations. TLO institutes a comprehensive background check before access is granted to its databases, which can take several weeks. Thus, an attorney interested in using this resource should apply well in advance.
CONCLUSION
Admittedly, the vast majority of information gleaned from these websites will be unhelpful. However, any helpful information can be invaluable and the success rate of these searches will only increase as social media usage continues to grow. Used properly, online juror research can level the playing field with wealthy defendants, help shorten the voir dire process, enhance juror impartiality, and ultimately promote civil justice for all plaintiffs.
[1] See NYCBA Comm. On Ethics Formal Opinion 2012-2.
[2] Id.
[3] Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010) (holding that attorneys had a duty to investigate prior litigation history of jurors during juror selection or early in trial); Roberts v. Tejada, 814 So.2d 334 (Fla. 2002); Carino v. Muenzen, A-5491-08T1, 2010 WL 3448071 (N.J. Super. Ct. App. Div. Aug. 30, 2010).
[4] State v. Burnette, 2006 WI App 20, 289 Wis. 2d 219, 709 N.W.2d 112 (2006)
[5] See Also Philadelphia Bar Ass’n Prof’l Guidance Comm. Op. 209-02 (March 2009).
[6] Comment six states, “Direct or indirect communication with a juror during the trial is clearly prohibited.” See Also People v. Fernino, 851 N.Y.S.2d 339 (N.Y. 2008) (holding Facebook friend request constitutes inappropriate contact).
[7] Robert B. Gibson & Jesse D. Capell, Researching Jurors on the Internet – Ethical Implication NYSBA Journal (November/December 2012).
[8] Id.
[9] Roberts ex rel. Estate of Roberts v. Tejada, 814 So. 2d 334, 337 (Fla. 2002)
[10] Id.
[11] For a great survey of “war stories” involving online juror research, Stephen Laitinen & Hilary Loynes, A New “Must Use” Tool in Litigation?, For the Defense (August 2010).
[12] All three search engines can be combined on a variety of websites, including www.DogPile.com.
[13] Jackie Cohen, 71 Percent Of U.S. Web Users Are On Facebook, available at http://www.allfacebook.com/71-percent-of-u-s-web-users-are-on-facebook_b27968 (last accessed June 5, 2013).
[14] Alexis Madrigal & Nicholas Jackson, The Rise and Fall of MySpace, The Atlantic (Jan 12, 2011).
[15] https://twitter.com/search/users?q=YourSearchHere