While once a rarity, internet research on potential jurors in advance of trial has become fairly commonplace. Research companies, like Vijilent, have brought to bear sophisticated tools to assist attorneys in their efforts to understand the potential jurors they face. This is fortunate, since research has shown that such research companies are far superior to attorneys and law firms in finding social media accounts of potential jurors. While establishing and analyzing jurors’ social media pages is a necessary and important first step, does that give us the most complete picture of who our jurors’ are? Is this their overall juror internet footprint?
There are a number of deficiencies with stopping with the jurors’ social media pages. First, the privacy settings for individual jurors vary between jurors, thus limiting uniform access to information across jurors. For example, jurors’ “friends,” “likes,” or posts (both on their timelines and posts to other social media sites) may or may not be public depending on their privacy settings. This may include any “friends” of witnesses or parties, or “likes” to political causes/candidates (e.g., Black lives Matter, Blue Lives Matter, or Defund the Police). Second, the jurors’ activity on other social media sites (e.g., posting on news social media or political or social cause sites) may not, and usually is not, present on their personal social media accounts. Finally, searches using the jurors’ social media usernames on various social media sites (e.g., news media Facebook pages) do not uncover posts or reactions. In general, the usernames are not searchable through the site’s search bar.
Based on the above issues, what can we do to better understand the jurors’ internet footprints beyond the jurors’ personal social media pages? First, we need to identify all the internet sources that could reveal information of interest in the case as it pertains to potential jurors. This identification process covers a number of areas. What news media coverage is relevant to the case (both case-specific posts and case-relevant posts that touch on similar themes or attitudes)? What is the social media presence of the parties or those connected with the parties? What witnesses will be called and do they have social media accounts? Beyond news social media sites, what other sites would be potentially useful, e.g., GoFundMe pages, obituary pages, advocacy groups, and political contributions, among other potential sources of information.
Second, once the targets of information have been identified, each of these targets should be analyzed in a manner that allows the cross-checking of jurors’ social media usernames with the assembled content.
Consider the following Facebook posts from two different news media Facebook pages concerning the indictment of a police officer for murder. Of interest here is that the spouse of a potential juror in the case posted “likes” the posts and comments supporting the prosecution. The name of the juror’s spouse is blocked out for privacy protection.
As can be seen, the spouse of the potential juror “liked” the post about the police officer being indicted. She not only posted reactions to the above post but also posted reactions to subsequent posts appearing on a different media platform (the local NBC affiliate). Note the “like” to the anti-defense “reply” that appears in the following post.
None of the above would be revealed by a search using the individual’s Facebook username/account. It is only by deconstructing the page can you “see” the presence of the potential juror’s spouse.
In the same case, we found potential jurors who (a) had posted on news coverage concerning Black Lives Matter and Blue Lives Matter, and “liked” the local police department’s Facebook posts; (b) were Facebook friends of the deceased’s girlfriend (and a potential witness) and other witnesses; (c) contributed money to a bail fund for Black Lives Matter protestors and raised money for social justice organizations; and (d) were Facebook friends of the some of the grand jurors who indicted the defendant; among other items of interest.
Jury selection has entered a new age where the jurors’ social media footprints play a large role in understanding how jurors may view your case. Starting with the initial identification of the jurors’ social media accounts through such research firms as Vijilent and continuing to the next level, attorneys will gain a better understanding of potential jurors and be more effective in jury selection.
Dr. Frederick has been involved in jury selection and jury research in hundreds of cases since 1975. He received his MS (1979) and Ph.D. (1980) in Social Psychology from North Carolina State University. He has written extensively on the topic of jury trials and trial advocacy, including three key books in the area, Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury, 4th Edition (2018), Mastering Voir Dire and Jury Selection: Supplemental Juror Questionnaires (2018), and The Psychology of the American Jury (1987), as well as numerous articles on the jury-related topics. He is a member of the Online Courtroom Project and recently authored Chapter 15: Online Jury Selection in The Online Courtroom: Leveraging Remote Technology in Litigation (Gabriel, R., & Broda-Bahm, K. Eds. 2022).
For more information on this topic and other jury trial issues and services, visit jftcs.com.
Jeffrey Frederick, Ph.D., President
Jeffrey Frederick Trial Consulting Services, LLC
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