(by Ana Campoy and Ashby Jones, The Wall Street Journal, WSJ.com) – Facebook is increasingly being used in courts to decide who is-and who isn’t-suitable to serve on a jury, the latest way in which the social-networking site is altering the U.S. court system.
Prosecution and defense lawyers are scouring the 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. [NOTE: A jury consultant is a human behavior expert who helps attorneys research and select jurors and provide insight into juror behavior. Jury consultants are used in both criminal trials and complex civil litigation.]
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.”
Using Facebook and other social media such as MySpace and blogs are particularly appealing during jury selection because lawyers have limited time to ask 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. [NOTE: Trial consultants help prepare witnesses, improve arguments and rhetoric, and select juries. Some consultants (and attorneys) believe that the most important part of any trial is jury selection, and many consultants concentrate their efforts on picking the perfect jury (or more accurately, striking the worst jurors). Some consultants spend most of their time working with witnesses or producing demonstrative exhibits, whereas others focus on developing an effective trial strategy.]
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.
Copyright 2011 Dow Jones & Company, Inc. All Rights Reserved. Reprinted here for educational purposes only. Visit the website at wsj.com.
1. What has traditionally been the method used by lawyers to eliminate potential jurors from the jury pool?
2. Why do some legal experts oppose the growing practice of checking social media site for information on potential jurors?
3. Why do attorneys like using social networking sites to check on potential jurors?
4. What limits do lawyers have in searching potential jurors’ social media pages?
5. A Texas county District Attorney Armando Villalobos is considering ways to gain access to the private information on users’ Facebook pages. He is considering granting members of the jury pool free access to the court’s wi-fi network in exchange for temporarily “friending” his office. Would you friend the DA’s office in exchange for wi-fi access while being considered for jury duty? Explain your answer.
6. Do you think checking potential jurors’ Facebook pages for personal information will improve trials? Explain your answer.
Details on possible jurors that prosecutors, lawyers and jury consultants say they look for:
- Favorite TV or radio shows. Some DAs say crime programs might give a misguided idea of how the justice system works.
- Rants. People who have strong opinions and no qualms about sharing them could try to dominate the jury’s discussions.
- Tweet levels. Lawyers worry that people prone to detailing their lives online will chatter about jury deliberations.
- Friends. May include people who might influence opinions or reveal links to parties to the case that should automatically disqualify someone.
PROCEDURE FOR CHOOSING JURORS:
- Selection of jurors from a jury pool occurs when a trial is announced and juror names are randomly selected and called out by the jury pool clerk.
- Depending on the type of trial – whether a 6 person or 12 person jury is needed, anywhere from 15 to 30 prospective jurors are sent to the courtroom to participate in voir dire, Attorneys choose jurors by using a system known as voir dire. [This is where each side of a case has the opportunity to ask questions of the jurors to determine who would not be suited to serve on this case due to underlying biases.]
- Once the list of prospective jurors has assembled in the courtroom the court clerk assigns them seats in the order their names were originally drawn.
- At this point the judge often will ask each prospective juror to answer a list of general questions such as name, occupation, education, family relationships, time conflicts for the anticipated length of the trial.
- The list is usually written up and clearly visible to assist … prospective jurors and may include several questions uniquely pertinent to the particular trial.
- These questions are to familiarize the judge and attorneys with the jurors and glean biases, experiences, or relationships that could jeopardize the proper course of the trial.
- After each prospective juror has answered the general slate of questions the attorneys may ask followup questions of some or all prospective jurors.
- Each side in the trial is allotted a certain number of challenges to remove prospective jurors from consideration.
- Some challenges are issued during voir dire while others are presented to the judge at the end of voir dire.
- The judge calls out the names of the anonymously challenged prospective jurors and those return to the pool for consideration in other trials.
- A jury is formed, then, of the remaining prospective jurors in the order that their names were originally chosen. Any prospective jurors not thusly impaneled return to the jury pool room.
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