Recent attention to the role of the Internet in jury selection by the New York City Bar Association (2012) underlined the importance of conducting Internet searches of prospective jurors during jury selection (i.e., not doing so may be akin to incompetence of counsel). At the same time, a total ban on communicating with jurors must be assured. Even inadvertent signs of an attorney’s visit left behind – electronic footprints – are forbidden as they have been deemed to constitute communication with the juror(s) being searched. The tension between the obligation to search and the risks of leaving a digital footprint has created new challenges for attorneys and others involved in the jury selection process.
DOAR has been at the forefront in addressing these challenges, designing and conducting “clean” Internet searches of jurors that allow us to search public databases and websites while minimizing the risk of leaving an electronic footprint discernible to jurors. The importance of these efforts was highlighted recently when a juror in United States v. Bank of America, Countrywide and Rebecca Mairone reported to SDNY Judge Jed Rakoff that one of Mairone’s attorneys had looked at his LinkedIn profile. Apparently the attorney did not conduct a “clean” search and Judge Rakoff said this effectively constituted contact with the juror.
It is unlikely that this search will have significant, if any, repercussions: Judge Rakoff instructed the jury to disregard the contact and allowed the proceedings to go on. In fact, he had given the attorneys permission to conduct searches on jurors during jury selection, and did not give any instructions on how these searches should be conducted. This incident illustrates, however, how easy it is to run afoul of the law at the rapidly evolving intersection of the Internet and the American courtroom. Trial attorneys need cutting-edge information, resources and “clean search” technology, and DOAR has developed the first technical protocol for obtaining information while avoiding the appearance of communicating with prospective or seated jurors. To speak to someone regarding this protocol or to receive a copy of our technical whitepaper describing the protocol, contact firstname.lastname@example.org.
Update: The technical whitepaper has been made available in this post (see below).