(Part I of four parts) Social media has altered the landscape of our lives in so many ways. It has even worked its way into the courtroom, touching the lives of trial lawyers and clients, most significantly in the selection of jurors. But the role it should play in this process is still very much up for debate.
Consider the hypothetical case of Smith v. Jones. Defense counsel stuns the court during a pretrial hearing request:
Counsel for defense: May it please the court:
We appreciate the opportunity to be heard, Your Honor.
At this time, during our pretrial hearing, we ask the court to permit us on behalf of the defendant to search electronically, by way of social media, the venire before they are seated in the jury box. After we complete our research, we would like to return to selection of the jury with the opportunity to present further questions to ask the members of the venire based on our social media research. Alternatively, please give us the proposed jury list several days prior to trial. We also seek permission to research the jurors during trial and after the trial.
Court (addressing counsel for defense): Let me make these points first: Do you appreciate that this court has a docket to move, and we have only so much time to select the jury, and that the voir dire questions submitted by all counsel are thorough? They were selected by counsel and this court from the Model Jury Selection Questions for Maryland Criminal and Civil Trials 2018 developed by the MSBA Special Committee on Voir Dire. I point out that these questions were endorsed by the Court of Appeals of Maryland in Collins v. State, 452 Md. 614 (2017).
Also, regarding the idea that you want to hound jurors during and after the trial might well invade the privacy of the jurors. Some of them might even feel threatened. What am I supposed to do, begin voir dire and then recess in the middle so you can hopscotch across the street to your offices for jury research? As you appreciate, we do not release the list of proposed jurors prior to the day of trial for reasons of security.
But, I shall hear from you. Please proceed.
Counsel for defense: We would like to discuss the merits of our motion and certainly address all of the court’s concerns, those you just articulated and other concerns that relate to our request. I observe at the outset that recent surveys tell us that two-thirds of adults use social media networking sites (citing from Lexology-Andrew Perrin, Social Media Usage: 2005-2015, Pew Research Center, October 8, 2015):
- Nearly 90 percent of adults ages 18-29 have a social media profile;
- Over 75 percent of adults ages 30-49 are on social media; and
- Over 35 percent of seniors over age 65 now use social media.
It is important for all of us to appreciate that social network platforms contain details about the lives of the jury panels. These networks such as Facebook, LinkedIn, Twitter, Instagram and others can reveal experiences of and values held by those using these platforms, including educational background, ideological beliefs and personal experience. Information such as who has served on a jury, prior litigation experience, health issues and what family members are doing is all readily accessible.
Almost all of the information on these sites is “public information.” Access to this information can help us select an impartial jury.
Court (smiling): Impartial jury? Don’t you mean, counsel, a jury you believe will deliver a verdict on behalf of your client, and not a verdict for plaintiff?
Counsel for defense: Seriously, Your Honor, the social media platforms of the venire are replete with pertinent information relevant to jury selection.
Join us for Part II when counsel for defense presents their argument.
Paul Mark Sandler, trial lawyer and author, can be reached at email@example.com.