Photo by Meruyert Gonullu
Article by Alyssa Elliott
A recent article from the Liberty University Law Review advocated for the prohibition of social media research on jurors. The author argues:
“Trial courts and trial counsel need clear guidance on this issue of Internet research about prospective jurors…[T]he improper use of a peremptory challenge with the information discovered, the lack of any record for appellate review, the problem with the accuracy of the information, the loss of efficiency in the voir dire process, the concerns over juror privacy, the perceived inconsistencies in the treatment of counsel and the jurors, [and] the potentially inequitable access to justice…[do not] ensure judicial integrity.”
In a time when having a social media presence is more commonplace than not, many regularly partake in internet research. Think of times you searched for someone online, whether out of curiosity, safety before meeting someone from the internet, or scrolling through your social media feed and clicking on someone’s profile. All forms of this are considered internet research, with the subject generally unaware of the activity. Why is this deemed acceptable when conducted by laypersons, but not when performed by professionals in the legal or consulting fields?
As a social media analyst for nearly two years, I have worked for large and small firms to conduct internet research for cases across varying litigation topics. Despite the difference in size, all firms’ objectives match: find the information relevant to the case and flag anything of potential importance using professional judgment and points of interest sent our way. For example, analysts search for indicators of disgruntled attitudes toward large corporations or familiarity with a specific product or service. When I perform my work, I never think that my actions invade someone’s privacy, especially as the information I use is readily available online. Social media analysts do not transcend the boundaries of private accounts by requesting to follow jurors or utilizing invasive techniques employed by the fictional television trial consultant Dr. Jason Bull. With trial consulting becoming increasingly recognized in the media and the professional sphere, the debate regarding whether internet research should be banned as a procedure has gained attention, as evidenced by the above-quoted article. To this, I respond, from first-hand experience, that there are minimal if any, benefits to removing this practice and should therefore be a continued legal strategy.
Since the emergence of the internet and widespread social media use, legal professionals are divided on whether to ban internet research of prospective jurors in conjunction with voir dire. Hannah L. Shotton, author of Internet Frisking Jurors During Voir Dire: The Case for Imposing Judicial Limitations, expressed the desire to forego the practice of internet research based on various sources deemed noteworthy enough to support this claim. Few of these sources were data-driven survey evidence from judges’ attitudes on allowing internet research. A reasonable amount of her evidence was legal professionals’ opinions, often sprouting from legal proceedings. While incorporating subjective viewpoints on a topic can prove fruitful and is common practice in a law review, it should not be the basis of one’s argument against a social scientific practice.
As with any practice, ethical violations are bound to happen intentionally and unintentionally. There will instances of misconduct, as this work is prone to human error, but that is not sufficient to promote the complete ban of a practice. Consider that attorneys occasionally object to certain voir dire questions as leading or preconditioning jurors: while a discrete objection may be sustained and the question may be disallowed, the attorney is not forced to end their voir dire entirely. Banning the practice based on a small subset of violations is akin to burning the forest to take out a few trees.
Shotton cites Justice Hugo Black, “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has” (The New York Times, 1964). Economic disparity has prevailed throughout history as evidence of people’s exposure and experiences to different opportunities, institutions, and quality of life. She does not advocate that everyone be required to hire attorneys with the same billable rate, nor that every litigant have the same budgets for graphics. Notably, performing internet research is one of the least expensive trial expenses—public defenders offices have the same ability to Google that the largest law firms do. Of course, the legal system is the institution where equality in the line of justice is imperative. Yet, additional resources should not be limited or eliminated, resulting from wider systemic issues. Shotton’s assumption that additional resources equate to an unfair trial should be disregarded based on the unavoidable disparities in resources involved in litigation. Ultimately, it is about how they are used, not merely the fact they are present.
Most professions establish and uphold ethical guidelines to help ensure safety, professionalism, and integrity, with trial consulting being no exception. The American Society of Trial Consultants holds its members to a high standard to follow its ethical guidelines for online research. Under the Appropriate Applications of Online Research subsection, point A reads, “Trial consultants shall recommend and employ online research in those instances when, in their professional judgments, such research is well suited to the research problem at hand.” Such guidelines promote internet research only in necessary situations, thereby challenging Shotton’s assumption that it is used frivolously and without merit. Internet research must be conducted where potential jurors have a greater chance of exposure to entities, feelings, and experiences that could be the basis for biases. As with anything, moderation is key. Implementing internet research would be counterproductive in some situations, but when attorneys exercise their professional judgment to determine its benefits, internet research should be permitted.
Furthermore, the ethics of privacy and confidentiality need to be discussed. With novels/movies like Runaway Jury and shows like Bull being the only exposure to trial consulting for some, it can instill fear and a certain level of distrust about this field and the purported invasion of privacy. Indeed, a recent MSNBC interview on Alex Wagner Tonight had a former deputy chief from the Southern District of New York describing such work as “basically stalk[ing] the jurors.” (NBCUniversal News Group, 2024). Dramatizing internet research for the media may be entertaining, however, the public should be aware that non-Hollywood trial consultants do not engage in the level of surveillance as these media may depict. Only publicly-available information is utilized in internet research, identical to that collected by potential employers. An interesting point Shotton raised pertained to the notion from many judges that despite jurors’ understanding potential employers search their internet presence, having it searched for jury service could deter individuals from wanting to participate (Shotton, 2024, p. 733). The author failed to factor in the level of secrecy when employers conduct internet research on applicants. Employers—much like trial consultants and litigants—rely upon a notion of implied awareness: jurors know their social media is public, so by extension they must know that it can be examined by anyone.
Regardless of whether employers or attorneys conduct internet research, the ethical issue of disclosing the research remains a key concern. Does the ethical issue concern withholding telling jurors that their social media will be searched, or does it apply to the possibility of ruining the integrity of the results, giving jurors a head start to delete and private their accounts? There is no direct answer currently, as this topic only emerged in the last 20 years, and the nuances have yet to be sorted out. In the meantime, judges can consider the potential negative outcomes of both scenarios, leading to the conclusion that allowing internet research without the individual’s knowledge may result in less harmful consequences. Indeed, this is the position the ABA has largely taken in its 2014 opinion: “Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.”
Shotton’s piece mentioned judges’ viewpoints about the consequences of permitting internet research, which can affect declining attitudes about one’s enthusiasm for jury service (Shotton, 2024, p. 733). Granted, while there is a decline in jury service rates, it highlights a larger problem in the judicial system (Shotton, 2024, p. 731). The phrase ‘correlation does not equal causation’ rings true in this scenario as there is no way to pinpoint if disclosing imminent internet research to jurors will reduce their eagerness to serve. It is more likely that more inconvenient realities of jury service (e.g., childcare, juror pay, transportation, etc.) are to blame for a lack of enthusiasm for jury service. Devoid of supporting data, there is no way of knowing whether announcing upcoming internet research would influence willingness to participate in jury service, so this argument should not be considered in the opinion to ban internet research.
Before concluding with her position of outright banning internet research to preserve the integrity of voir dire, Shotton highlights that internet researchers cannot trust everything published (Shotton, 2024, p. 745). While this is true, and such information should be interpreted and used cautiously, the same logic could be applied to juror’s answering under oath. Jurors’ internet presence is to be interpreted and judged with the same perspective as their in-court voir dire or jury questionnaire responses.
Perjury is important to the debate about banning internet research because if there were no instances of jurors lying under oath, the idea of being skeptical about social media information would be more credible. No current evidence quantifies the prevalence of perjury as it is seemingly impossible to collect data. Either way, attorneys and judges use their own good judgment when assessing the veracity of jurors’ spoken words during voir dire. It is almost as if the evidence for possible untruthful information on the internet cancels out the possibility of untruthful spoken information. Research from the academic world shows that everyone lies, with only a few who are prolific and compulsive liars (Serota & Levine, 2015). Shotton’s pessimism contradicts the very institution she attempts to defend, which is having the optimism that everyone is innocent until proven otherwise. So, why is internet research the exception to this belief system?
Guidelines from both ASTC and ABA have long been in place to address many of Shotton’s concerns. Shotton’s claim that such social media findings can inevitably contribute to unlawful peremptory strikes seems to be a separate issue on how strikes are used—a debate that has raged and resulted in several states banning their use entirely. Given so many of her arguments fail, internet research must remain in place. There is a lack of evidence proving pervasive violations of any ethics code, as the information collected is already readily accessible to anyone beyond the legal system. For continued use of this practice, perhaps there need to be expanded ethics guidelines on how peremptory strikes are not the result of internet research. While this will likely be a trial-and-error process, an agreed-upon list of information can be created to exclude certain details from internet research or include them in juror questionnaires. This approach addresses the presiding judge’s concerns about maintaining control and awareness of the line of questioning. Like any human endeavor, occasional errors will occur. However, this does not imply that the practice of the researchers is unethical or should be banned. Realizing that social media will only continue to play a larger role in society, shifts in the legal system must be made to acknowledge social media’s permanent fixture rather than fighting a losing battle when attempting to separate the internet from the court system. It is with this that internet research is a scapegoat for legal malpractice and unfairness and instead should be praised for the limitless information it provides.
References
ASTC code of professional standards: Practice area F online research. (n.d.). American Society of Trial Consultants. https://www.astcweb.org/_files/ugd/76dcb5_37369b8d4e604309ac0e8ac693ee9b8a.pdf
NBCUniversal News Group. (2024, April 6). Ahead of jury selection, New York judge bolsters gag order with threat trump can’t ignore. MSNBC. https://www.msnbc.com/alex-wagner-tonight/watch/ahead-of-jury-selection-new-york-judge-bolsters-gag-order-with-threat-trump-can-t-ignore-20845728593
Serota, K. B., & Levine, T. R. (2015). A few prolific liars: Variation in the prevalence of lying. Journal of Language and Social Psychology, 34(2), 138-157.
Shotton, Hannah L. (2024) “Internet Frisking Jurors During Voir Dire: The Case for Imposing Judicial Limitations,” Liberty University Law Review: Vol. 18: Iss. 3, Article 4.
Available at: https://digitalcommons.liberty.edu/lu_law_review/vol18/iss3/4
The New York Times. (1964, March 15). Equal justice for the poor, too; far too often, money-or the lack of it-can be the deciding factor in the courtroom…The New York Times. https://www.nytimes.com/1964/03/15/archives/equal-justice-for-the-poor-too-far-too-often-moneyor-the-lack-of.html#:~:text=Unfortunately%2C%20despite%20all%20these%20guarantees,amount%20of%20money%20he%20has.%E2%80%9D
Trevas, D. (2024, February 15). Toledo lawyer suspended for ethics violations. Court News Ohio. https://www.courtnewsohio.gov/cases/2024/SCO/0215/230978.asp