voir dire and jury selection social media use and other complex jury issues (web)

Voir Dire and Jury Selection

Social Media Use and

Other Complex Jury Issues

Copyright 2015, Adler Pollock & Sheehan P.C. · Attorney Advertising.

Nicole J. Benjamin, [email protected] Pollock & Sheehan P.C.One Citizens Plaza, 8th FloorProvidence, RI 02903(401) 274-7200www.RIAppeals.com

Image courtesy of Kromkrathog at Freedigitalphotos.net

2010: More than 12.5 billion electronic devices were connected to the Internet.

2015: It is estimated that this year, that number will rise to 25 billion devices.

2020: 50 billion devices will be connected to the Internet.

See Cisco, The Internet of Things, http://share.cisco.com/internet-of-things.html (last visited Jan. 5, 2015).

What Does That Mean

For Your Trial Practice?

• Lawyers must be competent in the use of technology during voir dire.

Proficiency and Competence

Rule 1.1:

Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

R.I. Supreme Ct. R. Prof. Conduct, Art. V,

RI Rules of Professional Conduct

Comment 8 to the substantially similar Model Rule provides:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Model Rules of Prof ’l Conduct

Is There An Affirmative

Obligation to Research Jurors?

“Many trial lawyers would argue that conducting Internet research during jury selection – including reviewing social media information posted by potential jurors – is now a fundamental component of effective client representation and advocacy.”

Colin K. Kelly & Aliyya Z. Haque, Twit or Tweet: A Trial Lawyer’s Guide to Using Social Media Information During Trial, 55 No. 10 DRI For the Defense 22 (Oct. 2013).

Trial consultant Robert Hirschhorn has cautioned:

“Anyone who doesn’t make use of [Internet searches of jurors] is bordering on malpractice.”

Erika L. Oliver, Researching Jurors on the Internet: The Ills of Putting Jurors on Trial and the Need to Shift the Focus Back to the Defendant, 34 U. La Verne L. Rev. 251 (2013).

Johnson v. McCulloch,306 S.W.3d 551(Mo. 2010)

“In light of advances in technology allowing greater access to information that can inform a trial court about the past litigation history of venire members, it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention at an earlier stage.”


“Litigants should not be allowed to wait until a verdict has been rendered to perform a . . . search for jurors’ prior litigation history when, in many instances, the search also could have been done in the final stages of jury selection or after the jury was selected but prior to the jury being empanelled.”

When selecting a jury:

Mountains of information available on the Internet about prospective jurors.

During trial:

Juror misconduct can be discovered through the Internet.

Mining Social Media for

Information about Jurors

• Information Gathering• Information Testing• Avoiding a Mistrial

Mining for Information

• Likes, dislikes, attitudes, beliefs, and life experiences

Information Gathering

Image courtesy of Master Isolated Images at Freedigitalphotos.net

• Political and religious beliefs


• Google Maps


• “Friends,” Followers or Connections.


Image courtesy of Cute Images at Freedigitalphotos.net

Sluss v. Kentucky,381 S.W.3d 215 (Ky. 2013)

It was discovered that two jurors were “Facebookfriends” with the victim’s mother, despite their previous indication during voir dire that they did not know the victim or her family and despite one of the juror’s representation during voir dire that she did not use Facebook.


The court cautioned that “‘friendships’ on Facebook and other similar social networking websites do not necessarily carry the same weight as true friendships or relationships in the community, which are generally the concern during voir dire. The degree of relationship between Facebook ‘friends’ varies greatly, from passing acquaintanceships and distant relatives to close friends and family.”


“The mere status of being a ‘friend’ on Facebookdoes not reflect this nuance and fails to reveal where in the spectrum of acquaintanceship the relationship actually falls. Facebook allows only one binary choice between two individuals where they either are ‘friends’ or are not ‘friends,’ with no status in between.”

• Past litigation and criminal history


Image courtesy of Vichaya Kiatying-Angsuleeat Freedigitalphotos.net


After the trial, plaintiff’s counsel searched for a juror’s litigation history and discovered that she had been a defendant in multiple debt collection cases and in a personal injury case.

Image courtesy of Stuart Miles at Freedigitalphotos.net


The juror had not disclosed her litigation history during voir dire. Upon discovery of the juror’s history, plaintiff’s counsel moved for a new trial, which was granted.

• Credibility and veracity

Information Testing

Image courtesy of Stuart Miles at Freedigitalphotos.net

Avoiding A Mistrial

• Sometimes, Internet research during voirdire can help avoid the expense of a mistrial.

State v. Dellinger,696 S.E.2d 38 (W. Va. 2010)

After a trial, it was concluded that a juror had lied in her responses to voir dire questions.

The juror failed to disclose that she not only knew the defendant but that she had sent him a message on MySpace after receiving her jury summons but before appearing for jury duty.


The juror posted on MySpace:

“Hey, I dont know you very well But I think you could use some advice! I havent been in your shoes for a long time but I can tell ya that God has a plan for you and your lie. You might not understand why you are hurting right now but when you look back on it, it will make perfect sensce. I know it hard but just remember that God is perfect and has the most perfect plan for your life. Talk soon!”


While an Internet search during voir dire could have uncovered this communication, the communication was not discovered until after the jury delivered its verdict.

On appeal, the appellate court held that the juror’s lack of candor in voir dire was grounds for a new trial.


from the Courtroom

• Seek permission, not forgiveness.

• Mining the Internet for information about prospective jurors is not universally accepted.

Carino v. Muenzel,2010 WL 3448071 (Super. Ct. N.J. App. Div. May 26, 2010)

Defense counsel objected to plaintiff’s counsel’s use of the Internet to “Google” prospective jurors.


THE COURT: Are you Googling these [potential jurors]?

[PLAINTIFF’S COUNSEL]: Your Honor, there’s no code law that says I’m not allowed to do that. I-any courtroom-

THE COURT: Is that what you’re doing?

[PLAINTIFF’S COUNSEL]: I’m getting information on jurors-we’ve done it all the time, everyone does it. It’s not unusual. It’s not. There’s no rule, no case or any suggestion in any case that says-


THE COURT: No, no, here is the rule. The rule is it’s my courtroom and I control it.

[PLAINTIFF’S COUNSEL]: I understand.

THE COURT: I believe in a fair and even playing field. I believe that everyone should have an equal opportunity. Now, with that said there was no advance indication that you would be using it. The only reason you’re doing that is because we happen to have a [Wi-Fi] connection in this courtroom at this point . . .


[PLAINTIFF’S COUNSEL]: Correct, Judge.

THE COURT: And that is fine provided there was a notice. There is no notice. Therefore, you have an inherent advantage regarding the jury selection process, which I don’t particularly feel is appropriate. So, therefore, my ruling is close the laptop for the jury selection process. You want to-I can’t control what goes on outside of this courtroom, but I can control what goes on inside the courtroom.


On appeal, the Appellate Division disagreed.

“That he 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.”


from the Courtroom

Mechanics

• Know what information you care about and why.

• Who is your model juror?


from the Courtroom

Mechanics

• Wi-Fi Connection• From counsel table/from office

* Don’t let the computer get between you and the jurors.* Don’t rely only on information from social media.


from the Courtroom

Mechanics

• Court dependent • Checklist


from the Courtroom

Mechanics

Apps• Jury Pad, iJury• Input information on jurors• Take a tour past the juror’s house• Predict juror’s votes

Researching Private vs.

Public Social Media Accounts –

What’s Ethical?

Sources of Information

Search Engines: Google, Bing, Yahoo

Social Media Websites: Facebook, Twitter, MySpace, LinkedIn, Google+, Foursquare, Pinterest

Photo or Video Repositories: Instagram, Flickr, Youtube

Model Rule of Professional

Conduct 3.5(b)

A lawyer shall not:

(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order.

ABA Formal Opinion 466

1. Public information


“Unless limited by law or court order, a lawyer may review a juror’s or a potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during trial, but a lawyer may not communicate directly or through another with a juror or potential juror.”


Pre-Internet Analog:

Image courtesy of StockImages at Freedigitalphotos.net

“[D]rive down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury-selection decisions.” Id.


Image courtesy of Master Isolated Images at Freedigitalphotos.net

2. Access Requests


“A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).”



Image courtesy of winnond at Freedigitalphotos.net

“[D]rive down the juror’s street, stop[] the car, get[] out, and ask[] the juror for permission to look inside the juror’s house because the lawyer cannot see enough when just driving past.”


3. Automated notifications


“The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).”



Image courtesy of graur razvan ionutat Freedigitalphotos.net

“[A] neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.”

Uncovering Juror Misconduct

And What To Do About It?

Image courtesy of t0zz at Freedigitalphotos.net

Juror Misconduct

• Juror postings on social media

• Juror research during trial

R.I. Rule of

Professional Conduct 3.3(b)

“A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”

Conduct Rising to the Level of

Criminal or Fraudulent

• “If a lawyer discovers evidence of juror or potential juror misconduct [while reviewing a juror’s or a potential juror’s Internet presence] that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessarily, disclosure to the tribunal.”

ABA Formal Opinion 466.

Conduct Not Rising to the

Level of Fraudulent or Criminal

• If the jurors conduct could be punished under applicable statutes as criminal contempt, a lawyer may have an obligation to report such misconduct.

Conduct Not Rising to the

Level of Fraudulent or Criminal

• Formal Opinion 466: “[I]nnocuous postings about jury service, such as the quality of the food served at lunch, may be contrary to judicial instructions, but fall short of conduct that would warrant the extreme response of finding a juror in criminal contempt.”

Shaw v. State,139 So.3d 79 (Miss. Ct. App. 2014)

“I guess all I need

to know is GUILTY.

lol.”

“Woooow I wasn’t

expecting to be in a jury

Deciding a paedophile’s

fate, I’ve always wanted

to F**k up a paedophile &

now I’m within the

law!’.”

Hon. Amy J. St. Eve, et al., More from the #Jury Box: The Latest on Juries and Social Media, 12 Duke Law & Technology Review 69-78 (2014) (quoting John Aston, Two Jurors Jailed for Contempt of Court Over use of Internet During Trials, The Independent (U.K.) (July 30, 2013)).

Christina Hall, Jurors' Facebook posts could lead to new trial in Macomb Co. murder case, Detroit Free Press (June 9, 2014).

“Not cool a young

man is dead

another young man

will be in prison

for long time

maybe”

Efforts to Control Jury

Social Media Use –

Prevention and Penalties

Controlling Jury Social Media Use• Model jury instruction

• Explained, in plain language, the reason behind the social media ban

• Instructed jurors at multiple points throughout the trial

• Used other jury instructions before trial

• Reminded jurors at voir dire to refrain from using social media while serving as a juror

• Used other jury instructions before deliberation

• Confiscated phones and other electronic devices during deliberation

• Confiscated phones and other electronic devices at the start of each day of trial

• Alerted the juror about the personal consequences

• Required jurors to sign a statement of compliance, similar to one suggested by the American College of Trial Lawyers

• Required jurors to sign a written pledge agreeing to refrain from using social media while serving as a juror.Meghan Dunn, Jurors’ Use of Social Media During Trials and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management, Federal Judicial Center (Nov. 22, 2011).

Controlling Jury Social Media Use

Judges who learned of a juror’s social media usage during trial took one of the following actions:

• Removed juror from jury

• Cautioned juror, but allowed him or her to remain on jury

• Declared a mistrial

• Held juror in contempt of court

• Fined juror

• Held a hearing to determine the extent of the information that was inappropriately shared

• Took some other response

Controlling Jury Social Media Use

Jury Instructions

In 2009, the Court Administration and Case Management Committee of the Judicial Conference of the United States recommended a model jury instruction to control jury social media use.

Jury Instructions

I know that may of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone at any time about this case or use these tools to communicate electronically with anyone about the case. . . You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, MySpace, LinkedIn, or YouTube. . . . I expect you will inform me as soon as you become aware of another juror’s violation of these instructions.

Jury Instructions

3 years 583 jurors

Were you tempted to communicate about the case through any social networks, such as Facebook, MySpace, LinkedIn, YouTube or Twitter?

Jury Instructions

“tempted”

Conclusion

• Social media has great value to trial lawyers. It is another tool in a litigator’s toolbox and should be used to help guide voir dire.

• It also comes with great risks. We all need to be cautious of the “8 percent” and take sufficient steps to prevent juror misconduct.

www.RIAppeals.com

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