There has been much attention in recent years to jurors’ use of the Internet to provide or obtain information about cases for which they have been selected. We have all seen reports of mistrials because a juror posted about a case on Facebook, searched an unfamiliar term and shared with fellow jurors a definition not sanctioned by the Court, or learned information about a party that had been ruled inadmissible.
We have heard much less, though, about the flip side of the coin: attorneys’ use of search engines, social media and other Internet resources to gather information about prospective jurors beyond what is offered in voir dire, and about seated jurors as well. Attorneys and jury consultants routinely engage in this practice, and judges are recognizing that it is an acceptable – and perhaps even desirable – step in the effort to select a fair and impartial jury. Just a few weeks ago Judge Jed Rakoff of the SDNY, presiding over the insider trading trial of Rajat Gupta, refused the prosecution’s request that the defense be ordered to stop searching for information on prospective jurors. Judge Rakoff noted that if jurors failed to reveal important information about themselves during voir dire, he would rather it be discovered now than during trial, when it would be far more complicated to deal with.
As the practice of researching jurors becomes more common, law and policy are evolving to set the parameters for such searches. We have seen two examples of this in recent weeks. First, the New York City Bar Association issued an ethics opinion saying that lawyers can conduct research on jurors using social media websites (looking at a juror’s Facebook page, for example) so long as they do not communicate with potential or sitting jurors. Second, Judge William Pauley of the Southern District of New York threw out the convictions and ordered new trials for three of the four defendants convicted in the Jenkins & Gilchrist tax shelter case after a juror hid her true identity as a disbarred lawyer with a criminal record. Judge Pauley ruled, however, that the fourth defendant – David Parse – had waived any objection to this juror because his attorneys investigated this juror and suspected her true identity during the trial but kept it to themselves. This case raises new and challenging questions about how to gauge the reliability of Internet-based information and what to do with information when you find it.
Fast, inexpensive and virtually unfettered access to information has transformed our world and is transforming the face of the American jury trial as the information superhighway continues to make inroads into the courtroom. Attorneys’ new ability to conduct real-time searches on jurors and to access previously inaccessible databases will likely give rise to a new body of law and policy that will be fascinating to follow.