The time spent waiting for a jury to render a verdict is, perhaps, the most excruciating time for any trial lawyer. There is doubt. There is second-guessing. There is a wish that the team could put in some extra effort to affect the outcome. A witness that could have been called; a question asked better; an exhibit used differently; an argument made more convincingly.
One time to put in that “extra effort” is during jury selection -- by conducting social media jury investigations.
In April, the American Bar Association issued Formal Opinion 466 in which they found that investigating potential jurors via social media is ethical, provided lawyers and their teams do not connect with potential jurors in the process.
We think social media jury investigations -- when performed properly -- are not just ethical, they a critical part of a trial lawyer’s responsibility as a zealous advocate.
In the George Zimmerman murder case last year, our social media investigations allowed us to identify three potential jurors who had misrepresented their knowledge of our case and their opinions regarding the guilt or innocence of our client. The most obvious reason for the deception was to infiltrate our panel and affect the outcome. We now have a name for them: stealth jurors.
Without a social media jury investigation, those stealth jurors may have caused a conviction -- or at the very least, a hung jury.
In trials with less media attention, such spectacular examples of the benefits of jury investigations are harder to come by -- but the results of the effort may prove no less significant to the outcome of a case. Stealth jurors are not limited to high profile cases. They could have an ax to grind with the defendant, the state, the insurance company, the corporation or the plaintiff. That’s the problem: You just don’t know, and “traditional” ways of determing bias, while still necessary to a good jury selection, are augmented greatly by social media investigation.
We have been able to find, on average, social media records for more than 80% of potential jurors -- if not from their accounts directly, then from their spouses or children.
The information we find, while not always comprehensive, is frequently revealing in very actionable ways. By analyzing even just a few social media posts, photographs, and comments, we can begin building a rough sketch of a potential juror. Through the lawyer’s targeted voir dire questioning, we can get a sense if a juror is being honest with his or her answers. We’ll know if a juror’s presentation in court fits with what we know of them online.
Moreover, we can identify potential jurors who may relate positively to the themes in a case. Trial lawyers can use this information to frame voir dire questions to specific jurors -- questions that lead to reasonably predictable answers that naturally set the stage for conversation between members of the venire about the critical themes.
The strongest benefit of social media jury investigations is that it allows the trial lawyer to make decisions during jury selection with more confidence. The truth is that often the decision to keep a juror or to spend a peremptory strike comes down to a gut feeling. Knowing even just a little about how a juror represents themselves online goes a long way to either confirming or disputing that gut feeling.
As a result, including social media investigations during jury selection often has the effect of making the process go faster. Cause strikes are granted more often, and they are more easily substantiated. Fewer peremptory strikes are used, and they are used more strategically.
Even though investigating jurors has clear benefits, a trial lawyers must weigh the costs and the risks.
Social media investigation is a time-consuming endeavor, and time available during voir dire is scarce. Moreover, the trial lawyer’s attention needs to be focused on the live panel, not on social media. As a result, social media investigations usually require a team. The ideal team includes staffers doing the initial searches and forwarding the information to an advocate in the courtroom. This advocate must be able to distil the torrent of information coming in, and deliver only actionable information to the trial attorney, and only when he or she needs it.
Also, while the ABA made it clear that social media investigations are ethical, they very clearly decided that making any contact with a potential juror is expressly forbidden. Any team you assemble must know the limits of what they can do during the investigations, and best practices must be put in place to prevent any type of contact from happening accidentally.
When the stakes are high, it’s easy to justify the effort required to vet a jury using social media. The time for a legal team to decide if social media investigations is right for any particular case is long before the trial starts. It’s not what anyone wants to be thinking about during those agonizing hours spent waiting the jury’s verdict, wondering if anything more could have been done.
Attorney Mark M. O’Mara of Orlando, FL, is a Legal Analyst at CNN. For the last 28 years, he has handled both Criminal Defense cases, including all state and federal crimes, and Family Law matters, including divorces, child matters and modifications and enforcement of support orders. He is Board Certified by the Florida Bar in Criminal Trial Law and in Marital and Family Law.
Shawn Vincent is the Communications Director at O’Mara Law Group in Orlando, Florida. He is a writer, a technology advocate and a media liaison. He has an ongoing interest in the relationship between message and medium.