The
New York Times recently featured an investigation of how technology -- especially online searches -- is
shaping jury selection.
One striking part of the article is how reticent attorneys and jury consultants were to even speak to Reuters Legal on the subject.
"Ten law firms and five jury consultants declined requests from
Reuters Legal to observe them building juror profiles, many saying they weren't sure judges would approve."
"Lawyers don't know the rules yet," said John Nadolenco, a partner at Mayer Brown in Los Angeles. "It's like the Wild West."
But while few are talking about it on the record, it's clear that this is a topic begging for official guidelines.
"Jurors are like icebergs -- only 10 percent of them is what you see in court," said Dallas-based jury consultant Jason Bloom. "But you go online and sometimes you can see the rest of the juror iceberg that's below the water line."
While most agree there is a lack of hard and fast rules as of now, one firm did provide access.
Alabam's Wooten Law Firm allowed Reuters Legal access as their paralegal "scanned Facebook, MySpace and Twitter, and used Google searches to find jurors' names on the websites of government agencies, school boards, local companies, and sites that contain property records. Links to each site were assembled in a spreadsheet."
In terms of precedent, a New Jersey Superior Court judge did bar counsel from googling potential jurors in the courtroom because the opposing counsel had not brought laptops to court, ruling that use of the internet provided "an inherent advantage regarding the jury selection process."
However, appellate judges held that the trial judge had improperly prohibited the online research, writing that the "playing field was, in fact, already level, because Internet access was open to both counsel -- even if only one of them chose to utilize it."
As the article summarizes, "the federal courts so far have not addressed the issue of online vetting of jurors, and just two states, Missouri and New Jersey, have said it's acceptable in some forms. But judges and lawyers, even in those states, still seem to be grappling with the practice."
