Investigating Jurors Online

Traditionally, voir dire is conducted by questioning potential jurors, and generally accepting their answers as true. But lawyers are increasingly using the internet to research potential jurors during voir dire, revealing information that jurors may not disclose—and may not want known. For example, in the terrorism trial of Jose Padilla, defense lawyers discovered that one juror had lied on her jury questionnaire about her experience with the criminal justice system. In a California case stemming from a construction accident, the plaintiff’s attorney discovered that a juror had run for state office on a tort-reform platform. In 2012, the Missouri Supreme Court upheld the removal of a juror after an internet search by defense counsel for Conagra Foods found that he was “a prolific poster for anti-corporation, organic foods” on his Facebook page. Courts have just begun to address this new means of investigating jurors during voir dire. In the past courts often expressed concerns for overly intrusive investigations into the suitability for a jury. In 2006, a U.S. district judge banned search engine inquiries into the prospective jurors during voir dire in the corruption trial of former Chicago mayoral aide Robert Sorich and a codefendant. A trial judge in New Jersey took the same approach, but in 2011 an appeals court held that a trial judge acted unreasonably in preventing use of the internet by defendant’s counsel to research potential jurors, but also held that the defendant had not been prejudiced by the trial court’s ruling. In a 2012 decision, another New Jersey judge rejected a prosecutor’s effort to obtain potential jurors’ birth dates in order to run criminal background checks. But the Missouri Supreme Court reached the opposite conclusion, actually requiring litigants to research jurors’ prior litigation history on the court system’s online database. Two bar associations in New York have held that such research by attorneys is ethical, as long as it does not involve any communication with jurors. My presentation and article will examine the history of investigation of jurors beyond simple questioning, and the new possibilities presented by the internet. Is such research of jurors proper, or an invasion of the jurors’ privacy? Is it ethical for attorneys to do such research? Is it malpractice for them not to?

Page last updated: Mon, 11/19/2012 - 09:27