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Wednesday, June 23, 2010

Ind. Courts - Checking out the juror pool via the internet

IU Law's Joel Schumm sends this story from the July 2010 issue of the ABA Journal about lawyers using the internet to sort through the jury pool names, as soon as they are made available. Some quotes:

Paralegals carrying laptops equipped with 3G and wireless cellphone lines accompany Los Angeles County plaintiffs lawyer Paul Kiesel to court when it’s time to pick a jury. Providing that they can pick up a signal, the workers do real-time social media searches while the clerk reads the names of jury panel members.

In Los Angeles County, how jury panel members’ names are released is left to the judge’s discretion. On big cases, Kiesel says, the court might release names the evening before selection begins. But more commonly, counsel finds out who is on the panel as the members walk in.

“Last month I had 50 jurors, and as the court clerk read out the names, I had two people in the courtroom and a third person back at the office, with all three of them doing research,” says Kiesel, a partner with Kiesel, Boucher & Larson. Junior lawyers also assisted, and Kiesel estimates the social media research for that case cost less than $5,000. * * *

For the most part, state courts allow lawyers to bring laptops into court rooms, but Googling the jury panel isn’t what they have in mind, says Paula Hannaford-Agor. She directs the Center for Jury Studies at the National Center for State Courts.

“It’s hard to make a broad generalization, but it’s fair to say the bench is more protective of juror privacy,” she says, adding that online snooping “tends to creep jurors out when they’re aware of it.”

Kiesel says no judge has banned him from using the Internet in jury selection. That sort of mandate, he adds, would violate the First Amendment.

Hannaford-Agor allows that the searches would be hard to police.

“This is a really fluid area right now, and no one in the legal community is adequately keeping up with the technology or some of the implications,” she says. “So if you call me again in six months, I might have a different answer.”

Prof. Schumm notes:
I think most courts provide the juror names the morning of trial, unless it's a high profile case where questionnaires are completed in advance. If an anonymous jury is ordered, though, research would not be possible.
Schumm points to a 19-page, 2007 COA opinion by Judge Bradford, Major v. State, which discusses in detail the use of an anonymous jury:
Major’s first challenge is to the trial court’s empaneling an anonymous jury. He contends that the use of an anonymous jury, especially in this case where the trial court failed to justify it, constituted an abuse of discretion and denied him certain Federal Constitutional rights, including his right to a fair trial under the Fourteenth Amendment and his right to trial by an impartial jury under the Sixth Amendment. The State responds by arguing that an anonymous jury was justified under the facts of this case. Both parties agree that this is an issue of first impression in Indiana. * * *

In evaluating the instant case, we observe that pursuant to the above precedent and as the State concedes, a determination as to the propriety of an anonymous jury requires judicial consideration on a case-by-case basis and is not justifiable based solely upon a local rule authorizing the wholesale use of anonymous juries. Here, the trial court provided no case or fact-specific justification in permitting the empanelment of an anonymous jury. Indeed, the court’s only justification for empaneling this anonymous jury was the apparent local rule allegedly permitting Lake County juries to be anonymous, as well as the fact that the jurors’ names were available if necessary to resolve any improprieties. In light of our above standard requiring the trial court, in empaneling an anonymous jury, to make a factual determination that the jury needs protection, we conclude this was error. See Williams, 690 N.E.2d at 169-70 (holding that additional restrictions to the unfettered access of the public and press at trial must be justified by trial court findings).

See also this ILB entry from April 7, 2004, on juror secrecy, and this one from Dec. 31, 2004.

Posted by Marcia Oddi on June 23, 2010 11:08 AM
Posted to Indiana Courts