Have you ever stopped to think about how much information someone can find about you after some googling? Think about all the data that people enter into Facebook: where they live, what they look like, where they work and go to school, their hobbies, their favorite books and movies, and likely no shortage of political opinions. Social media websites like Facebook, LinkedIn, Twitter, and Tumblr can be a treasure trove for trial attorneys seeking all the information they can find (and possibly exploit) about prospective jurors. Suddenly, that “jury of your peers” becomes a jury pool for attorneys and jury consultants to peer into in the hopes of finding useful personal information that can serve as a tool to fine-tune arguments and lines of questioning.
Although courts and legal commentators have adopted varying attitudes towards the appropriateness of attorneys using social media to research jurors, one federal judge voiced his concerns about extra-judicial research of a juror’s online presence. In Oracle America, Inc. v. Google, Inc., counsel for both parties requested additional time before beginning voir dire, to research the online presence and publicly available social media information about the prospective jurors. Upon hearing arguments by counsel as to whether extrajudicial research of a juror’s online presence should be permitted, Judge William Alsup of the United States District Court for the Northern District of California issued a thirteen page order asking both sides to voluntarily refrain from social media investigations in exchange for additional time to conduct voir dire. In reaching this decision, the Court outlined three dangers that could arise in permitting social media research of potential jurors by counsel, their jury consultants, investigators, and clients.
1. Jury Research Could Encourage Disobedience of Court Admonitions
The Court first explained that social media research of jurors could encourage jurors to stray from the Court’s admonition to refrain from conducting Internet searches on the lawyers and the case. Although such an admonishment is commonplace in jury trials and “the entire venire will be told to refrain from any such research soon after it reaches the courtroom and well before the final jury is even selected,” the Court acknowledged the unfairness inherent in “allowing the lawyers to do to the venire, what the venire cannot do to the lawyers.” The Court found that such unfairness would have “a corrosive effect on fidelity to the no-research admonition.” The Court reasoned that once the venire learns that lawyers are researching the jurors through their online activities, “a very serious risk will be presented that they will feel justified in doing to the lawyers (and to the case itself) what the lawyers are doing to them, namely, conducting Internet searches – despite the no-research admonition.” As a result, those emboldened jurors could subject themselves to influences and commentary about the case beyond the evidence presented in the courtroom.
2. Counsel Could Take Advantage of the Information Discovered
Second, the Court explained that a danger exists that the research findings will facilitate improper personal appeals to particular jurors via jury arguments and witness examinations patterned after individual juror preferences. The Court expressed concerns that lawyers might identify books and movies enjoyed by particular jurors, and then craft questions and arguments in such a way as to explicitly reference those books and movies and garner favor. The Court explained that “jury arguments may, of course, employ analogies and quotations, but it would be out of bounds to play up to a juror through such a calculated personal appeal, all the moreso since the judge, having no access to the [juror] dossiers, couldn’t see what was really at play.” Essentially, the Court explained that it is one thing to use an analogy or cultural reference to make an argument to a jury, but justice is compromised when those analogies and references are crafted to appeal directly to individual jurors that an attorney knows could be uniquely affected. Instead of strengthening an argument, these references instead become a tool to sway a juror based on his or her individual emotions or preferences.
3. Juror Privacy Could be Threatened
Lastly, the Court explained that restricting social media research is needed to protect the privacy of the jurors. The Court explained that juror “privacy should yield only as necessary to reveal bias or a reluctance to follow the Court’s instructions.” Preempting expected criticism of this reasoning, the Court explained that “it is a weak answer that venire persons, through their social media privacy settings, have chosen to expose their profiles to scrutiny, for navigating privacy settings and fully understanding default settings is more a matter of blind faith than conscious choice. (Otherwise, there would be no need for websites explaining the intricacies of privacy settings).” In other words, jurors sign up as a service, not as an invitation to have strangers peer into their private information so that it may be exploited.
Following the Court’s Order, both Google and Oracle agreed to voluntarily refrain from researching juror social media accounts. The Court’s proactive approach to limit social media research exposed the dangers inherent in researching jurors beyond the tools provided by questionnaires and voir dire. Research of jurors by counsel through the Internet is certainly nothing new. However, few court decisions examine the harms that such research could inflict upon the judicial system. Not only can social media research infringe upon a juror’s expectations of privacy, but it can also undermine the fairness expected in a jury trial. Voir dire is meant to occur in open court so that both parties and the judge understand a particular juror’s fitness to sit before a given case. But an attorney’s savviness in being able to track digital information about each juror can give an unfair advantage to better prey upon a particular juror’s politics, fears, worldviews, and emotions. Indeed, jurors are no longer seen as objective finders of fact, but rather a roster of pawns whose personalities can be exploited.
The Court discussed at length that jurors are not celebrities, public figures, or some fantasy team composed by jury consultants. Accordingly, juror privacy demands some form of protection because they engage in jury duty as a service to the community. But naturally, one must wonder how attempts to research jurors will be regulated and potentially barred in the future. Interestingly, the Court did not impose a ban upon the parties. Instead, it identified the potential dangers of juror research, and invited counsel for both sides to “step up to the plate,” and consent to a ban. Future cases may see parties and attorneys without the willing inclination to accept a total ban of juror research. In turn, different courts could react in ways ranging from imposing a total ban to taking a completely hands off approach. Judge Alsup certainly made his position clear, but as the internet overflows with data about individuals, this controversy should be expected to present itself again and again as attorneys seek to peer into the lives and personalities of jurors.