Voir Dire for the Vanguard

by Mike Rosen

With 70 million people actively using LinkedIn, 190 million on Twitter, and 400 million on Facebook, Internet research has become de rigueur among lawyers and jury consultants who want the inside scoop on the citizens who will decide a case.

"Facebook is every jury profiler's greatest friend," says John Buffini, president of Buffini Communication Systems in San Diego. "Everything about a juror - their interests, their politics - is just a click away. Traditional jury research was limited to analyzing broad demographics, but social media helps us to do personality profiling of individual jurors."

According to Buffini, lawyers are wary of jurors with "drama-heavy" online presences - who either start arguments in online forums or fervidly follow celebrity gossip blogs - because they may be swayed by courtroom theatrics rather than the substantive legal issues.

Web searches can also help trial attorneys locate the most honest candidates. Perhaps most famously, Internet research revealed that a potential juror in the Jose Padilla dirty-bomb conspiracy case lied on a jury questionnaire.

"It really helps to cull through the information to determine if what the jurors wrote on their questionnaires is accurate or if there are any inconsistencies," says Marshall Hennington, owner of a jury consulting firm in Beverly Hills. Using Google and other Web tools to help attorneys prepare for assault and battery trials, his firm discovered that some potential jurors hadn't come clean about their own brushes with the law.

But online digging during voir dire comes with logistical challenges: There may not be enough time to conduct Web research during jury selection, and many courtrooms lack Internet access. When finances and Wi-Fi signals permit, though, law firm associates can sometimes be found in the rear of the courtroom running online searches from their laptops.

Still, there's little agreement among attorneys on a code of conduct regarding juror privacy, particularly when it comes to message boards that require registration to gain access. On the other hand, there are some actions that lawyers generally avoid, such as sending a juror a "friend" request on Facebook or contacting jurors directly via social media sites.

"What's needed most is guidance," says Matthew McCusker, of Tsongas Litigation Consulting in Seattle, who estimates that 10 percent of Web searches yield relevant information. "We all know the basics, but beyond that it's all over the board. There's no case law yet ... so everyone's just going by gut feeling."

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