Posted on 22 Feb 2011
Last week in the Daily NewsFlash, we ran an article about attorneys googling potential candidates for jurors. Well, Facebook is also increasingly being used in courts to decide who is—and who isn't—suitable to serve on a jury.
Prosecution and defense lawyers are going through the popular social networking site for personal details about members of the jury pool that could signal which side they might sympathize with during a trial. They consider what potential jurors watch on television, their interests and hobbies, and how religious they are.
Josh Marquis, district attorney of Clatsop County in Oregon, did background searches on Facebook to help pick a jury for a penalty trial last summer to determine if a convicted murderer should get the death penalty. He was looking for clues on how potential jurors might feel about the defendant, a man who killed a couple as a teenager in 1988. The jury imposed the death penalty.
Jury consultant Amber Yearwood in San Francisco found that one potential juror in a product-liability case last year held strident opinions on a host of issues, and dispensed unsolicited medical and sex advice. "Often juries offer opinionated people like that the perfect opportunity to wield their influence," said Ms. Yearwood. The prospective juror was bounced.
Some legal experts oppose this growing practice of scouring social-media sites, arguing that the traditional jury-selection process, which involves lawyers questioning prospective jurors, provides more valuable information than out-of-context online comments.
"I don't think we should abandon that system in favor of Internet snooping," said Jason Schultz, co-director of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley, law school. "There are a number people who post who they want to be, as opposed to who they are."
Some appellate courts have upheld lawyers' rights to research jurors online, including one in New Jersey that ruled last year that a lower-court judge erred by prohibiting a plaintiffs' attorney from using the Internet in the courtroom. The court wrote: The fact that the plaintiffs' lawyer "had the foresight to bring his laptop computer to court and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of 'fairness' or maintaining a 'level playing field.' "
Jury selection is not the only way in which social media are altering the nation's courts. Divorce lawyers have used information in social-media posts to extract higher alimony payments from indiscreet spouses, experts and lawyers report. And in some juvenile courts, judges considered what defendants wrote online to help determine whether they were remorseful.
Using Facebook and other social media such as MySpace and blogs are particularly appealing during jury selection because lawyers have limited time toask questions. Social-networking sites often contain candid, personal information generated directly by the user. "These days, it's the place where people voice their opinions," said jury consultant Art Patterson.
Armando Villalobos, the district attorney of Cameron County, Brownsville, Texas, last year equipped his prosecutors with iPads to scan the Web during jury selection.
He acknowledged that they sometimes dug up only the unprotected tidbits that Facebook users share with everyone, such as their alma mater or favorite band.
Many people, he said, limit access to more telling details to those they have "friended." (It's unclear, for example, what his prosecutors would glean from Mr. Villalobos's own Facebook page, without friending him: It shows he is married and a fan of the TV show "Spartacus.")
Mr. Villalobos is considering a method to get behind the site's private wall to learn more. One option: granting members of the jury pool free access to the court's wi-fi network in exchange for temporarily "friending" his office.
Some citizens in Brownsville are apprehensive about lawyers rummaging through their online lives. "It feels as if they are tapping into our personal lives," said Lazaro Leal in an interview conducted via Facebook. Legal teams aren't convinced by that reasoning.
David Cannon, a Los Angeles-based trial consultant, discovered on blogs that a potential juror in a personal-injury case had made extensive attempts to contact extraterrestrials. He recommended that his clients, who were representing the defendants, not select her. "It just showed an instability," he said.
Paul Kiesel, a plaintiffs' lawyer in Beverly Hills, Calif., said his firm ran searches of social-networking sites during the jury-selection process in a recent sex-abuse case involving a Catholic priest. The case was settled, but Mr. Kiesel said the information would have proved invaluable.
"We could glean whether someone was identified with a religion, and get a sense of how devout they seemed to be," he said. "It's a waterfall of information, compared to the pinhole view you used to get."
Mr. Marquis, the Oregon DA, said that even small details, like a person's favorite show, could say something about them. A predilection for crime shows, such as "CSI: Crime Scene Investigation," tells Mr. Marquis that the prospective juror might have unrealistic expectations that DNA evidence could be obtained from every crime scene.
"It's way more complicated and expensive than it is on TV," he said.