JURY SELECTION. Presentation Overview. How Social Media is Changing the Game Educational Conference

Transcription

1 JURY SELECTION How Social Media is Changing the Game OCPA 2018 Educational Conference Co-Founder, Trial Innovations Ph.D., Clinical Psychology and Law 21 Years in field of Trial Consulting Presentation Overview I. Challenges of Jury Selection A. Juror Bias B. Juror Candor C. The Minimization Effect D. The Set-aside Question II. Overcoming those Challenges A. Social Media B. Voir Dire C. Questionnaires D. Rating Jurors E. Avoiding the Set-Aside Question 1

2 Juror Bias CONCEPTUAL FILTERS: ATTITUDES AND BELIEFS Result in selective perceptions of the evidence We accept or attend to things that agree with our preconceptions We fail to hear or ignore things that disagree with them HOW MALLEABLE ARE JURORS ATTITUDES AND BELIEFS? Personal Experiences Acquired Attitudes Acquired Beliefs 2

3 THE PROCESS OF DELIBERATION Blends the facts of the case we put on, with the perceptions and experiences of the jury People DO change their minds, but they would RATHER not Juror Candor 3

4 It takes a while for people to warm up. Case Relevant Experiences Voir Dire: Smoking related illnesses: Did not raise hand Know someone with smoking related illness 11 Straight from the Horse s Mouth I don t do bumper stickers, so I was safe from individual questioning on that one. 4

5 Getting Inside Jurors Heads. Jurors often look for reasons to exclude themselves from having to respond to questions. The Minimization Effect Examples of Minimization Language I just read extensively in the newspaper. Nothing that stands out. Other than that, I haven t really followed it too well. I just kind of followed the newspaper articles. 5

6 What to Do Use juror questionnaire Attorney conducted voir dire Encourage honest disclosure Reduce the anxiety of the situation Follow-up in private Social media and backgrounds Now we have another avenue to get to know the juror. How does the juror present himself or herself to the online world, and how is this consistent or inconsistent with what we are observing in the courtroom? SOCIAL MEDIA AND THE INTERNET Social Networks Facebook, Twitter, LinkedIn Open Web Google, Bing, Yahoo! Deep Web Public Records Archived Web Cached Google Search 6

7 EFFECTIVE RESEARCH SKILLS No Footprints Timing and Red Herrings Effective Search Tools Identifying Useful Results Insufficient Information Avoid Liability Compliance POPULAR PLATFORMS 68% Facebook 28% Instagram (IG) 26% Pinterest 25% LinkedIn 21% Twitter 7

8 USING RELEVANT PLATFORMS FACEBOOK Private v. Public Likes Groups Friends Pictures Posts LINKEDIN Adjust Settings Input Location Connections Similar Concepts Likes Groups Employment Endorse Premium Profiles SEARCH FOOTPRINT ß LIMITATIONS 8

9 OCPA Educational Conference TWITTER FINDING HISTORIC TWEETS Limited Visible Tweets Public Profiles Hashtags Private Users Follow Button USING SEARCH ENGINES GOOGLE #1 Search Engine Quotations Keywords Connecting Terms Results Images Maps Google Earth Use Chrome 9

10 PUTTING IT ALL TOGETHER Credible Resources Recognize Patterns Tracking Time Critical Thinking Fact-Driven Concise Summaries ILLUSTRATIONS PREVENTING PROLONGED TRIALS Florida civil juries consist of six (6) jurors, with only three (3) strikes permitted per party, and a limited number of available alternates. This was a premises liability case. Plaintiff alleged injuries and losses due to the negligence of the Defendant (our client). We were looking for potential jurors with prior lawsuit histories, criminal records, and prior affiliations with the Defendants. Local demographics favored the Plaintiff. Googling a final name in quotations yielded a criminal record of check-kiting, resulting in removal for cause. 10

11 FBI: FACEBOOK INVESTIGATION If an individual does not want to be found, then even with a wealth of facts known about an individual can be irrelevant. After a week of exhausting resources, the subject s address was found through an extensive Facebook investigation. This was accomplished by tracking common friends, family, and fans. Identifying characteristics were visible outside the subject s home via Google Earth, resulting in a response from the subject after a period of ignored responses. Have you ever been arrested? NO Have you ever been arrested? 11

12 Getting Inside Jurors Heads. Oh, My bad. I thought you meant, was I ever arrested and represented by the county public defender. Also, my case isn t resolved. So, that is why I thought it didn t apply to me. Law enforcement LEGAL ETHICS 12

13 MODEL RULES: FORMAL OPINION 466 (2014) Unauthorized Communications [A] lawyer cannot send an access request to the website subscriber as this would constitute a prohibited communication with a juror. [He] also cannot do so through the acts of another. See Model Rule 8.4(a) Misconduct. Electronic Social Media (ESM) For ESM and other websites that are publicly available, [a] lawyer may review them since The mere act of observing that which is open to the public would not constitute a communicative act that violates 3.5(b). CASE LAW SLUSS V. COMMONWEALTH (2012) Facebooking the jury 13

14 JOHNSON V. MCCOLLOUGH (2010) Case.net Johnson Standard Putting it all together Look out for minimization language Do not be discouraged Continue to probe with openended questions Look for consistencies and inconsistencies with information that is available online. Voir Dire 14

15 GET JURORS TO OPEN UP Draft Questions in advance. Start broad and get specific. Ask if anyone has had experiences or if friends or family members have had them. Ask attitude questions. Don t worry about contaminating the pool. It s harder than you think. Reinforce responses. Loop others in Who else feels that way? Keep it conversational (Talk show style). Juror Questionnaires INCLUDE QUESTIONS YOU DON T WANT TO ASK (PRIVATE AND PERSONAL QUESTIONS) Arrest history Lawsuit history Medical history Substance abuse Death of loved ones Recent losses Perceptions of your client 15

16 EMPLOYMENT; LEADERSHIP POTENTIAL EMPLOYMENT SATISFACTION; EMPLOYMENT HISTORY; BUSINESS OWNERSHIP SKILL SETS; LEADERSHIP; DE FACTO EXPERTISE 16

17 UNION MEMBERSHIP GRIEVANCE HISTORY; LEADERSHIP SOCIOECONOMIC STATUS EDUCATIONAL BACKGROUND; LEADERSHIP; DE FACTO EXPERTISE 17

18 POTENTIAL LEADERSHIP; ACTIVISM POLITICAL ATTITUDES OTHER ADULTS AT HOME; POSSIBLE SOURCES OF INFLUENCE/INFORMATION 18

19 OTHER SOURCES OF INFLUENCE/INFORMATION LEADERSHIP SOURCE OF ATTITUDES OR BELIEFS 19

20 LEADERSHIP; POTENTIAL FOREPERSON CLEAN-UP QUESTIONS Jury Selection: Rating Jurors 20

21 DIMENSION ONE: Bring it all together to rate the jurors based on their : Constellation of Attitudes, Beliefs and Personal Experiences; Online Info 1 Negative 3 Neutral 5 Positive DIMENSION TWO: Influence Quotient 1 Non-Participant Persuader 3 Participant 5 Persuader JURY SELECTION 1. Give advanced thought to jurors you want and don t want. a. Make decisions based on these hypotheses 2. Rate Jurors on Two Dimensions: a. Constellation of attitudes, beliefs, personal experiences, social media, and backgrounds b. Leadership or Influence Quotient 3. Stick with your initial impression to minimize the likelihood of regrets from second guessing yourself. a. Play out how the jury will look after anticipated strikes before striking jurors. 21

22 WHAT TO DO? RATING LEADERSHIP ????? What to Avoid Avoid asking the hard questions upfront (Warm up the jurors) Start with open-ended question Avoid the set-aside question What to Avoid: The Set-aside Question All looks yellow to the jaundiced eye. -Alexander Pope (1709) 22

23 Common Examples Can you be fair and impartial? Can you follow the judges instructions and listen to the evidence? Can you set-aside your bias and decide this case solely on the evidence presented? John Walker Lindh: American Taliban I am an open-minded and fair man. I could, I would look at the evidence. I believe he is innocent until proven guilty He was involved with the enemy; he is as bad as Bin Laden Definitely a traitor Probably a terrorist John Walker Lindh: American Taliban I would consider all the evidence presented by the court and give a fair opinion. We all have to be careful as to what we say about Mr. Lindh. He is definitely guilty because he was in conspiracy with the Taliban against the United States to kill and do harm to our people He should receive the minimum life imprisonment or the death penalty Definitely a traitor Definitely a terrorist 23

24 What to Avoid Avoid the set-aside question Avoid loaded language Lead the juror to where you want him to go CITATIONS John G Browning, Voir Dire Becomes Voir Google: Ethical Concerns of 21st Century Jury Selection Lawyer review of jurors' presence on the Internet (2016), Johnson v. McCullough, 306 S. W. 3d 551 (Mo. 2010) (en banc). Margaret Bull Kovera & Brian L. Cutler, Consultation During Voir Dire, Jury Selection , (2012). Rule 3.5: Impartiality & Decorum of the Tribunal, Rule 3.5: Impartiality & Decorum of the Tribunal The Center for Professional Responsibility (2017), essionalconduct/rule_3_5_impartiality_decorum_of_the_tribunal.html.. CITATIONS Shannon Greenwood, Andrew Perrin & Maeve Duggan, SOCIAL MEDIA UPDATE 2016 PEW RESEARCH CENTER: INTERNET, SCIENCE & TECH (2016), Sluss v. Commonwealth, 381 S. W. 3d 215 (Ky. 2012). Theodore O Prosise, Shadow Juries: A Unique Advantage in Civil Trials ABA Section of Litigation (2009), Top 15 Most Popular Social Networking Sites January 2017, TOP 15 MOST POPULAR SOCIAL NETWORKING SITES JANUARY 2017 (2016), 24