Is a Social Media Background Check Being Used for Jury Selection at all Ethical?
Social media background check? What? So, in 2010, the ABA Journal reported that lawyers admitted to using the Internet to ferret out information about potential jurors.
And essentially what happens: in some instances, while reading off the names of the members of a jury pool, a lawyer or paralegal Googles them. Sometimes the names are released the night before (at least, in Los Angeles County they can be), but it can also happen where lawyers only learn who would potentially sit on a jury on the day of selection.
State By State Differences
While state courts allow lawyers to bring laptops into courtrooms, Googling the jury panel isn’t what they have in mind, says Paula Hannaford-Agor, who directs the Center for Jury Studies at the National Center for State Courts.
However, preventing counsel from checking potential jurors’ backgrounds online might pose a Constitutional question and may very well violate the First Amendment. Though the law remains fluid in this area, with no decisions or tests yet.
Personal Thoughts
With all of the above said, I don’t know where I fall on the spectrum. Preventing Googling doesn’t just seem like a First Amendment issue – it also seems to exist as more of a common sense one. Because with the invention of the telephone, when a lawyer suddenly could learn more about jurors (and far more quickly than sending letters or asking a messenger to run somewhere or another), was that ever questioned?
And did it bother the jurors? Or did they perhaps not know about it? Or, maybe even if they did know, were they still so dazzled and flattered by the use of the brand-new technology? Did it make them not care, or see any implications?
Privacy?
And then we have the other end of things. Do I really want to be Googled if I’m in a jury pool? Welllll, lawyers look for every other possible advantage and nugget of information. So what would lead me to believe that they wouldn’t look there as well? If I exist as a somewhat sophisticated potential juror (and I’ve practiced law fer cryin’ out loud), I know that. And in particular in an expensive or high stakes (read: death row) case, both sides will look for every possible angle.
They scrutinize my bumper stickers. And my dress. My hair. Whether I’m wearing nail polish. My voter registration records. My work product, which is available online. Because they look at anything and everything.
Plus, as an avid Facebook and Twitter (and LinkedIn, and SparkPeople) user, I well understand the openness of my online life. And, for me, particularly after losing a boatload of weight, I feel it’s important to be open about a lot of things. Perhaps I overshare. No, wait, I definitely overshare. I know my life is open and there are all sorts of cracks in the armor.
Yet at the same time I, like many other people, feel there’s still a place to put on the brakes. Somewhere in there, there are vestiges of privacy. However, are they still available to me if I end up in a jury pool?
However, I’m not in a jury pool under my own volition. Hence I believe that, even as I share yet another “before” photo or mention that I’m turning a particular age or whatever, that I can throw up a wall.
Can’t I? Even a little bit?
Your Thoughts on a Social Media Background Check?
I’m curious as to what others think. Is this a squishy, I-want-to-be-left-alone area, or should we all just get over it? Is it the crest of a slippery slope? Would it erode privacy even more? Or did I get all hot and bothered over nothing?
Gentle reader, what do you think?
Years Later, What’s Different?
Right now, a social media background check seems almost quaint. You can more or less expect a social media background check for employment. And you can kind of expect a social media background check by the police. At least, in the higher profile cases, I would think.
Hell, you would probably do well to do a social media background check on yourself. So, this doesn’t feel so weird or invasive anymore.
It is, in its essence, just another way for the legal profession to attempt to get an advantage during a trial or for negotiations, nothing more.
I bet the next thing we are going to see are motions written by AI, or at least with its help. That is, if we are not seeing those already.