POSTED BY Carolyn Kenniston
How many times a day do you hear the phrase “Google it”? Whether it be researching a potential restaurant or potential date, people are using Google to get information on a broad spectrum of topics. But what happens when lawyers use Google to search potential jurors during the voir dire process? In 2011, Forbes posted an article stating that if your attorney is not savvy with Facebook or Google then you ought to find new representation.
A New Jersey Appellate Court decided in Carino v. Muenzen, 2010 N.J. Super. Unpub. LEXIS 2154 (App.Div. 2010) that lawyers are allowed to search potential jurors online. While the opposing counsel did not do an online search, the judge concluded there was no prejudice because an Internet connection was available to everyone in the courthouse and the attorney’s computer usage was not disruptive. Additionally, the judge offered no reasoning as to why the lawyer must give opposing counsel advance notice of their intent to use the Internet to do a search of potential jurors.
While many court questionnaires inquire potential jurors’ name, age, and marital status, Google can reveal much more. A simple Google search can disclose sexual orientation, favorite books and movies, income level, links to social media pages, and political affiliations. Notwithstanding the potential invasion of privacy, courts continue to allow lawyers to search potential jurors. Recently, a judge ruled that the lawyers for one of the friends of Dzhokhar Tsarnaev, the accused Boston Marathon bomber, were allowed to Google potential jurors before the voir dire selection.
While some may believe that searching jurors online is unethical, lawyers still maintain the right to do so as long as they do not communicate with or harass those individuals. Additionally, it is recommended not to use any information found from the online search of potential jurors during the actual trial. This includes any information that might reveal to a juror that you are following them and create a sense of duress, which could ultimately be harmful to the trial.
Although searching potential jurors online is being utilized more frequently, there are consequences to this practice. What an individual posts or is connected to online may not accurately represent their true beliefs. Just because an individual “Likes” something on Facebook, such as a TV show or movie, it is not necessarily reflective of how they want to be seen as jurors or how they would decide during deliberations. For example, a defense attorney might avoid jurors who note that they like crime shows, such as “Law & Order” or “CSI: Crime Scene Investigation,” because they might be more inclined to side with the prosecution. Another negative effect is that prospective jurors who wish not to be selected may be savvy enough to post articles or a status on social media sites that would make them appear unfit for the role as a juror to avoid selection.
The ability to use the Internet to learn more about individuals seems to aid lawyers greatly in the process of selecting jurors, allowing them to use their peremptory challenges to their advantage after vetting a potential juror online. While it does not appear that the usage of technology in the courtroom will reduce over time, lawyers should be mindful of limitations of searching for potential jurors, as well as its advantages.
Blogger Bio: Carolyn Kenniston is a Staff Member of the Journal of High Technology Law. She is currently a 2L at Suffolk Law. She holds a B.A. in Legal Studies from Lasell College.
