Social Media Monitoring doesn’t end when the jury is seated

Background checks conducted of prospective jurors are becoming, or should be becoming, routine. We’ve written about this before, see http://magnusinsights.com/2019/01/juror-background-checks/. Though there are some constraints on these practices imposed by courts and each state’s bar rules, they are here to stay. When I say “background checks,” I am referring to searches of both public information and social media. The reasons for doing so are numerous. But, simply, they are done to learn whether the prospective jurors are truthful and to explore deeper insights to determine whether a person is suitable for one’s side of a particular case. Conducting such searches can reveal helpful information that may not emerge in oral voir dire, whether by accident or on purpose. For example, searching criminal history may reveal surprising information. I mean, how does one forget he/she has a felony conviction and has not had his/her rights restored? I don’t know, but that little detail has shown up more than once. And, that mousy grocery store clerk, well, who would have thought that she was a white supremacist? Had her Facebook page not been full of Confederate battle flags, we wouldn’t have known. But, these are things one, hopefully, learns before trial. The point of this post is a reminder that such research doesn’t end when the jury is seated and trial begins. Especially in a world where every newspaper is online and the articles most often allow comment, someone on the trial team should be monitoring social and other media during the trial “just in case.” Just in case someone posts something about the trial for all to read. Of course, not all trials make the news, but when they do, watching what is said is worthwhile. It is important to keep a pulse on the comments as feedback about how the case is proceeding, and to monitor if anyone is trying to plant information not revealed in court for the jurors to find – yes, this happens. And, watching publically available posts by the trial jurors may also provide insights. There might not be anything to find during trial; that is the best case scenario. But, if you do…

I spoke with an attorney not long ago who told me that, if he were a judge, no one would be permitted to perform social media searches or background checks of prospective jurors.  It’s a good thing he is not a judge because the judges who preside over the court cases in which I am involved allow, and sometimes, encourage, the attorneys to conduct background and social media searches of all prospective jury members.  This is, after all, the modern world and we can’t keep wishing we lived “in the good old days” (whatever that means).  Face it, ladies and gentlemen and children of all ages, background checks and social media searches are a way of life in every courtroom in the U. S. A., whether old school lawyers like it or not.  And, as David points out, 100% of the time in cases for which I have selected a jury in the past 10 years, we have uncovered something about 1 or more prospective jurors that has changed my mind about them, most often, leading me to recommend to my client that these jurors be stricken from the panel.  (Once in a while, we find out something that causes me to be more favorable about a particular juror than I had been based on his/her answers to oral voir dire questions.)  As an example, background checks have revealed that we have a convicted felon, whose rights have not been restored, on our panel.  This means that, somehow, this person slipped through the cracks in the court’s system (in that convicted felons are ineligible for jury service), then lied when asked by the court clerk if anyone present has been convicted of a felony.  In a recent medical malpractice case involving a woman who is dying because her physicians failed to diagnose breast cancer (that was obvious and there to be seen, if only they had bothered to look at her mammography results), there was a man who was eager to serve on the jury.  Lo and behold, not only did our investigator find out, via a simple background check, that this eager person was a convicted felon, he was convicted and served 9 years in prison, for domestic battery!  Did we allow him to serve on the jury?  Or, did we tell the judge what we found out and ask that he be excused from jury service?  As David also noted, continuous searches of jurors’ social media must be performed throughout the trial because, despite warnings from the judge not to communicate with anyone about the case, we have found numerous examples of jurors who disobey the judge and, instead of saying nothing, tell everyone on the internet everything there is to know about the trial.  We may not like it, but keeping tabs on the jurors is essential in the world in which we live.

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