Lawyers tap social media in jury selection process
Gaining information is the most critical part of jury selection, and Buffalo attorney Howard Cohen says selecting that jury can be of utmost importance in the direction of a trial.
So if information about a potential juror is out there, many would find it difficult to resist looking at it. Social media sites have been providing the type of information that questioning alone sometimes misses such as political viewpoints, religious background, preferences, associations and predispositions.
The American Bar Association recently gave its opinion that the use of social media for monitoring and searching is acceptable in jury selection, as long as attorneys are not connecting in any way with jurors on these sites.
And while most attorneys try not to invade jurors’ privacy, Cohen said they often check out sites for information that could be helpful.
“Both sides are looking for a fair and impartial jury,” said Cohen, of Gross Shuman Brizdle & Gilfillan P.C., who represents clients in trials, including personal injury and wrongful death claims. “If you’re just doing a search and find information about someone, that information helps you. You’re more informed whether that person, because of their experience and viewpoints, can be a fair and impartial juror in that particular case.”
Choosing a jury, then, isn’t so much a science as it is an art, said David Adams, a litigation attorney at Hurwitz & Fine P.C. It’s all about getting a feeling from the juror about their beliefs to make sure he or she won’t have any prejudice against a client.
Adams said the goal is to get potential jurors to be as open as possible by relating to them in a personable way.
Jurors tend to fall into three categories, he said:
Those who want to be part of a jury because of an agenda;
Those who don’t want to be part of the jury because it’s an imposition;
People willing to serve on a jury as part of their civic duty.
He said he hopes to find the latter. And if it takes looking at someone’s social media to find out more about their personality, activities and life experience, that’s what he and others do.
Said Adams: “One thing I tell the jurors is that at the end of the day, I have to walk out of there and make a phone call to my client, and say, ‘I selected this person, and I feel he or she can be fair and impartial and actually listen to the evidence before rendering a decision.’ I find that it helps to personalize with the juror (that) there are real people out there that they’ll be making decisions for.”
Dealing in civil cases, Laraine Kelley of Lipsitz Green Scime Cambria said trying to find six impartial people who will rely only on what they hear in the courtroom and from the advising judge is no small task. There’s no way it can easily be done in the context of jury selection, she said, since two complete strangers are communicating to one another in limited time.
Anything that can get below the surface of an individual is useful information, Kelley said. Doing research via social networks helps attorneys find out how the person views themselves and wishes to be viewed, along with confirming or refuting what people have to say about themselves.
“Trying to find impartial people is an extremely delicate task,” said Kelley, a senior partner who focuses on personal injury cases. “The old-fashioned way was to simply ask people whether they can be fair and impartial. And while some people have enough insight into themselves to recognize bias, most people do not, unless you call it out of them and make them think it through.”
Cohen, of Gross Shuman, cited a study by Pew Research Center that found 74 percent of Internet users are on social networking sites. It said 89 percent of users ages 18 to 29 get to these sites, and 49 percent of people age 65 and above are online, as well. He said usage crosses ethnic backgrounds, gender and demographics.
Attorneys are ethically obligated to keep up with changes in the law and practices, including technological advances, Cohen said. However, there are also ethics for an attorney to uphold in this online research.
Adams said research is fine as long as it doesn’t cross the line into communication. An attorney cannot request access through a jurors’ social media page or retain a third party to do so, he said, but whatever is public is fair game indeed.
Harry Forrest, who focuses on personal injury cases at Gross Shuman, compared it to being acceptable for an attorney to drive down the street of a potential juror and possibly catch a view of that person, but the attorney cannot park his or her car nearby, ring the doorbell and ask to be invited in.
“The line is definitely there as far as communication goes,” Forrest said.
Cohen said after attorneys gain basic information about potential jurors, they can ask questions to find out more, but one of the limitations is that in a court setting, many people are reluctant to share personal information. He said attorneys are also dealing with a trend in the court system to reduce the amount of time a lawyer has to question a potential juror.
“Your time to ask people about their views has become less and less,” Cohen said. “In New York State Supreme Court, there’s not much of an opportunity to ask the jury much of anything in certain cases. The judge does much of the questioning.”
Time constraints even make researching a juror difficult, according to Adams. He relies on a paralegal to handle most of the research.
For her research, Kelley said she’s never used anything but Facebook, which, according to Pew Research, is used by 71 percent of adults who go online. Cohen said he likes the information provided by LinkedIn — employment history, educational background and endorsements, but notifications sent through the network as to whom is searching a person’s page could end up being unnerving to a potential juror.
LinkedIn is still a bit of gray area for attorneys because of those alerts, Adams said.
The American Bar Association’s decision on this subject has been beneficial, he said but there was also some guidance already in place in New York state. Ethics opinions were provided about the investigation of jurors during trial in 2011 and then the next year, an opinion was also given about researching jurors through social media. They follow what the American Bar Association put out this year, according to Adams.
“We already knew it was permissible to research but not permissible to engage in communication or seek access to anything that was personal,” he said.
While info gathered from social networks could prove significant, Kelley said it’s usually not going to provide more than confirmation of what a potential juror has already told an attorney about their life. She added the ethical component for attorneys doing this research should come down to common sense.
“You’re not finding out anything all too in-depth unless it’s a person who has strong views that are reflected on their pages, and those people are out there,” she said.