The Art of Advocacy

I previously posted about attorneys doing jury research on social networking sites. The other side of the coin is that jurors can conduct internet research of their own, a problematic phenomenon discussed in this story from the Twin Cities Business Journal. Jurors have always been told to avoid reading about a case on their own, but now that it's so easy to satisfy one's curiosity with an iPhone, Blackberry or computer, a judge's warnings may not always be enough to ward off the temptation to know more. Anyone who has ever used Google, should understand the inherent danger of a potential jury member making decisions based on online information. Misinformation, public opinion, and publicity spin fill online forums like Wikipedia, blogs, and newspaper sites.

A common question at the voir dire: “Is there any member of the jury panel who has knowledge of any facts relating to this case?” Attorneys may also want to ask whether potential jurors believe they could obey the judge and stay away from Internet research during trial. The aforementioned article cites Dorsey & Whitney partner Peter Carter's experience in a Kansas City trial:

“ 'During voir dire, we asked whether jurors would abide by instructions to not do research on the Internet, and probably six to 10 potential jurors said they could never abide by that,' Carter said. [He] and other attorneys involved in the case then asked the 80 potential jurors whether they had already researched the case on the Internet. Carter said six to seven more people admitted they had.' "

Such experiences illustrate how critical voir dire can be. Many lawyers have campaigned for a broader voir dire that would afford them more opportunity to question jurors individually. There has been little enthusiasm from the judiciary for such proposals. Arguments against an expanded voir dire range from the efficiency of judicial administration to the need to protect jurors from penetrating questions that violate their privacy, to the concern that lawyers would unfairly use the process to begin persuading jurors before evidence has been presented. All of these points have merit, but now that jurors can so easily access information independently, perhaps it is time to revisit the standard voir dire questions.