When jurors were chosen for the perjury trial of baseball star Barry Bonds this month, they were barred from using social media in regards to the case. Such a ban doesn’t extend to lawyers, who mine Facebook Inc. profiles of jurors to unearth a bias that might hurt or help their side.
Facebook, Twitter Inc. and other services have become a major resource for both prosecutors and defense attorneys, letting them glean more insight than they can get from jury questionnaires, said Joseph Rice, chief executive officer of Jury Research Institute in Alamo, California.
“Social media has given us an incredible tool, because it’s something jurors voluntarily engage in, and they post information about their activities or affiliations or hobbies,” Rice said. That reveals “their life experience or attitude that may have an impact on how they view the facts of the case.”
The practice adds fuel to the debate over social-networking privacy and whether Internet postings should be used to reject someone from a job or academic program -- or a seat in the jury box. Facebook has more than 500 million users, while Twitter members post 140 million messages daily. That yields a wealth of data that lawyers can use to screen people or hone arguments.
David Wenner, a partner at Snyder & Wenner in Phoenix, said any piece of information about a juror’s life that’s relevant to a case could help determine who may be biased.
“Let’s say you have a case involving an emergency room -- you’re suing a hospital for negligence,” he said. “Wouldn’t it be nice to know that there’s some picture posted on a website of you attending some hospital charity event?”
Definition of Friend
If jurors aren’t truthful about their social-networking connections during vetting, convictions can be overturned. Take the 2008 example of Amber Hyre, a West Virginia juror who didn’t disclose that she was MySpace friends with the defendant, a police officer being tried on criminal charges. After the relationship came to light, a state appeals court threw out the defendant’s conviction and ordered a new trial.
Hyre, who lives in Gassaway, West Virginia, said the defendant had requested to be her friend before the trial, and she accepted. When he posted messages about being depressed, she sent him a note online to cheer him up. During jury selection, she was asked if she had ever visited the defendant’s house or had other interactions, which she hadn’t.
“Maybe I should have said he was on my MySpace page, but then I thought to myself, I really don’t know him, so I’m really not lying,” Hyre, 30, said in an interview. Since then, she’s been “much more cautious” about whom she communicates with online.
Easier Detective Work
To ensure lawyers aren’t surprised, companies are selling social-media monitoring services. DecisionQuest, a trial consulting firm, started offering it three years ago, said Christine Martin, a senior consultant with the firm in New York.
“In the old days, they could use private investigators,” Martin said. “This just makes it a lot easier.”
She cites an example last year of a Michigan woman who was removed from a jury because she said on Facebook that the defendant was guilty -- before arguments were finished.
In the Bonds case, jurors had to agree in writing not to communicate about the case via social media, the Internet “or any other means, electronic or otherwise,” according to a filing in federal court in San Francisco.
That language was added to the jury questionnaire, an unusual step, said Chris St. Hilaire, president of Jury Impact, a consulting firm in Costa Mesa, California. It’s more routine for judges to admonish jurors verbally not to discuss the case outside of court.
Assistant U.S. Attorney Jeff Nedrow, who is prosecuting Bonds and participated in jury selection, declined to comment, as did Allen Ruby, an attorney for Bonds.
There are rules governing how far firms and lawyers can go to obtain the information, said DecisionQuest’s Martin.
“You can’t use trickery to get someone to friend you or get behind their privacy wall,” she said. “It’s a breach of legal ethics.”
Even so, the searches raise privacy questions, said Kurt Roemer, chief security strategist of Citrix Systems Inc., a software company in Fort Lauderdale, Florida. He focuses on Internet security and privacy issues.
If potential jurors are concerned, they should limit who can see their profiles to friends only, he said. They also need to be mindful of location-based applications, such as Foursquare, which broadcast a person’s location for all the world to see, Roemer said.
“They definitely expose your privacy and erode your anonymity,” he said. “From a jury perspective, you want to be really careful that people don’t know who you are, that you’re on the jury, that you’re actively considering this type of a case, because they could try to influence you or potentially even harm you.”
She says she worked on a case where a prospective juror indicated he had never been in court for any reason. It turns out the person served as an expert witness as part of his job -- something Kellermann found in a Google search.
Twitter, a site that lets users share 140-character messages, is rife with jury members posting their thoughts. A search for the term “juryduty” brings up new posts every few minutes. Comments range from observations about other people in the jury pool to remarks such as, “Dear judge, thank you for a two-hour lunch break. I needed the rum and Coke to carry on.”
If a juror suggests online that a witness didn’t seem believable, or that she’s made up her mind about the evidence without a judge’s guidance, “that would be something that you’d like to bring to somebody’s attention,” said Rice, the litigation consultant. “That’s inappropriate activity.”
Courts are still hashing out how to handle social media, especially in high-profile cases, he said.
“The court system is struggling to understand the roles that technology can play in a juror’s life,” Rice said, “and how to keep that genie in a bottle.”
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