The only universal recommendation we make to clients these days regarding trial strategies is to be prepared to have background checks conducted on the potential jurors. Though this practice must be done with some care, and with the observation of a few Bar rules, it is important to prepare for background checks early. I have become aware of several firms offering this service as an ancillary to the work of trial consultants. I also know that some law firms prefer to use their staff to do this, to save money or to create additional billable hours. However it is done, it is increasingly true that conducting background checks is important to the success of the client’s case. Searches should include public records and social media postings. Often, nothing of value turns up about many of the venire members. But, when something does turn up, it can provide tremendous insights that are beyond the scope of traditional voir dire. It may be positive. It may be negative. And, it may be information from an “angle” that no one ever considered. The examples of what has been found when Melissa has worked with a background investigator are numerous. Some are frightening, like finding out that the grocery cashier in the venire was a white supremacist. Some information merely supports and supplements the impressions from voir dire. But, information is information and it can be enlightening. Because it is somewhat rare to be given the list of people who will be called for a particular case in advance, planning for background checks during voir dire includes many logistical details. For example, will someone be present at trial, in person, to conduct the research or will someone on the trial team be tasked with sending the list to the attorneys and consultant? And, how will the information be received? When? How quickly? So far, it has been our experience and preference to have someone present on location to do the searches and effectively “hand” the results to Melissa and the trial team. The trial consultant and lead attorney have enough other work to do than to spend their time liasioning with the investigator(s) such that it is better that a less essential trial team member be given this responsibility. Lastly, searches don’t end with the swearing in of the jurors. Continued monitoring of the selected jurors’ social media, as well as monitoring of the press coverage of a case, is important and should be done daily with feedback to the trial team as necessary. Technology makes this possible, yet it complicates trial lawyers’ lives by one more degree!
The voir dire process (which is defined as asking questions of potential jurors to de-select those who cannot be fair and impartial), as arduous as it may be, is never exhaustive enough to provide all of the information we need to know about every potential juror. There are time limitations, particularly time limitations related to the amount of patience the judge and jurors have with the attorneys’ inquiries; there are practical considerations, as well as privacy concerns, that prohibit certain questions from being asked; and there are issues unrelated to the case, but which provide information important to determining one’s fitness for jury service; all of which constrain the jury selection process. In the days before people lived their lives publicly, via social media and other internet outlets, it was difficult to conduct background checks of the prospective jurors without hiring a private investigator. In addition, in most of the cases for which I have selected a jury, the list of prospective jurors is not provided until the moment they walk into the courtroom, which, of course, precludes all of the investigations people see on TV and in the movies from taking place prior to the first day of trial. Real life just doesn’t follow the same rules as fictional accounts of the work of jury/trial consultants! In addition, when I am assisting an attorney with jury selection, it takes all of my time and effort to do my job. There is no time for me to conduct background checks or do any other work. For these reasons, if an attorney wants to find out who the jurors really are, as opposed to who they say they are, background checks are essential supplements to the voir dire process. One never knows what will turn up during a background check, but based on my experience, background checks of prospective jurors are here to stay. Selecting a jury in today’s world involves much more than merely asking, “Can you be fair?” to prospective jurors. Failing to conduct background checks can result in a costly mistake for one’s client, such that the attorney who is trying the case must consider this aspect of trial preparation as important as anything else he/she does on behalf of all clients.
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