Tips For Voir Dire: Check Faces and Facebook

As a litigator, your biggest concern is getting the jury to understand and sympathize with the person you’re defending. But what if one juror was so empathetic, she used social media messaging to contact your client?

The aforementioned scenario is exactly what landed one English juror in a lot of trouble during a high-profile narcotics case in the U.K. In fact, continual electronic messaging to the defendant earned her eight months in prison (and most likely an automatic out of the national jury pool) for being in contempt of court.

Among today’s tips for voir dire, lawyers should not only monitor jury members’ faces, but also, apparently, their facebook accounts.

In this instance, forty-year old juror Joanne Fraill contacted defendant Jamie Sewart after Stewart was acquitted of all charges but before other accused defendants had been sentenced. The case was a second retrial, which collapsed soon after Fraill’s misstep had been brought to light.

Here in America, jurors are none the wiser. Just today, a juror in a Queens rape case was fined $1,000 after it was discovered he texted a friend details of the deliberations. The case resulted in a mistrial.  

In Minority Trial Lawyer, commercial litigator Denise Zamore discusses this type of juror behavior and the increased number of fines, juror exclusions, and mistrials as a result of social media and technology, saying:    

“Within the past few years, trials throughout the country have been affected by juror use of technology to research and communicate via the Internet, often affecting the rights of litigants to have their cases decided only on admitted evidence, and thus allowing the deliberative process to go beyond its authorized limits. In addition to conducting Internet research, jurors now blog, tweet, and post to Facebook and MySpace about their trials.”

In fact, last year, lawyers, judges, and legal government bodies were so unanimously concerned with this trend that on January 28, 2010, the Judicial Conference Committee on Court Administration and Case Management issued model jury instructions to each United States District Court Judge. The instructions outline the legal responsibilities of jurors, specifically rules on the use of social media.

Wired published a copy of the model jury instructions here.

As much as judges and attorneys will attempt to dissuade and prevent it, sharing information via the Internet is far too tempting a (cyber)space. It’s likely, despite commands to the contrary, jurors will still tweet, status update, or message inappropriate particulars about a trial.

So, in this light, there are a few steps that Zamore offers than can help prevent facilitate blind justice.   

  1. During voir dire, counsel should inquire as to jurors’ usage of the Internet generally, and social media specifically. Inquire as to what websites jurors frequent, how often they access those websites, and if they post to those websites. Ask whether the jurors blog.
  2. Counsel should request that in his initial instructions to the jury, the judge expressly prohibit research and communications on the Internet at any time during the trial. The instructions should explicitly reference and prohibit the use of social media, including Facebook, Twitter, and MySpace.
  3. Counsel can also request that the judge remind jurors of the penalties for conducting outside research and require jurors to sign declarations stating that they will not research the case details on the Internet.
  4. During a trial, counsel should regularly check social media websites to confirm whether jurors are posting or blogging regarding the trial.
  5. Counsel should take the preemptive step of conducting their own Internet research to learn what information exists online about the trial, including any information regarding the litigants, witnesses, and lawyers. Counsel should review their case and consider what questions might arise during the trial that could prompt a juror to look elsewhere for answers.
  6. Counsel should take these questions into consideration when putting together its case presentation. 
  7. Where juror misconduct seems apparent, counsel should strongly consider a post verdict motion for voir dire of a juror to determine whether juror misconduct has in fact occurred.

The risks of free-flowing conversation via social media and the Internet are not limited to trial law. Law firm administrators should be aware of what their own associates are posting in terms of client or case information, the practice, or its partners.

Consider drafting a social media policy for employees—much like the Judicial Conference Committee’s jury instructions—that specifies acceptable behavior regarding Facebook, Twitter, and blogs. Include penalties (somewhere between eight months in prison and $1,000) that will deter this type of negligent behavior.

-WB


For more information, attend C4CM’s course titled, “Social Media Policy Dos and Don’ts: Employees, Networking Sites and the Law.”

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