Social Media: A New Jury Selection ToolBy
When jurors were chosen for the perjury trial of baseball star Barry Bonds last month, they were barred from using social media as they considered the case. Such a ban doesn't extend to lawyers, who increasingly mine Facebook profiles of jurors to unearth biases that might hurt or help their side.
Facebook, Twitter, 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, says Joseph Rice, chief executive of Jury Research Institute, an Alamo (Calif.)-based trial consultant. "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 says. That reveals "their life experience or attitude that may have an impact on how they view the facts of the case."
DecisionQuest, a trial consulting firm, started offering a social media monitoring service to lawyers three years ago, says Christine Martin, a senior consultant with the firm. "In the old days they could use private investigators," she says. Last year a Michigan woman was removed from a criminal jury because she said on Facebook that the defendant was guilty—before arguments were finished, says Martin.
Facebook has more than 500 million users, while Twitter members post 140 million messages daily. That yields a wealth of data lawyers can use to screen jurors or tailor arguments toward those sitting in judgment of their cases. "Let's say you have a case involving an emergency room—you're suing a hospital for negligence," says David Wenner, a partner at Snyder & Wenner in Phoenix. "Wouldn't it be nice to know that there's some picture posted on a website of [a prospective juror] attending some hospital charity event?"
In some cases, an Internet search can reveal when potential jurors lie during questioning, says Kathy Kellermann, who runs a litigation consulting firm in Marina del Rey, Calif. She recalls working on a case in which a prospective juror indicated that he had never been in court for any reason. A Google (GOOG) search showed that he had once served as an expert witness.
If jurors aren't truthful about their social networking connections during vetting, convictions can be overturned. Amber Hyre, a juror in a West Virginia case in 2008, 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 says 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. "Maybe I should have said he was on my Myspace page," says Hyre, 30, "but then I thought to myself, I really don't know him, so I'm really not lying."
There are rules governing how far firms and lawyers can go to obtain information, says Martin. "You can't use trickery to get someone to friend you or get behind their privacy wall," she says. Still, the searches raise privacy questions, says Kurt Roemer, chief security strategist at software maker Citrix Systems (CTXS). "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," he says.
The bottom line: Web-savvy lawyers and legal consultants are scouring social media to investigate jurors' backgrounds and biases.