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Archive for the ‘Internet & jurors’ Category

jury_room_525The options for online searches of potential jurors seem to be a fast-moving target. Our experience is that often there is simply no time for more than the most cursory efforts that often happen during a very short voir dire session itself. In other cases, if there is time to conduct such research, sometimes the information required to do accurate online research (i.e., full name, address, date of birth) are not provided. Yet presentations talk about the importance of a thorough search and some go so far as to say it is not ethical to forego such background internet research into potential jurors [citing the 2010 Missouri Supreme Court standard]. So it was good to see this (hard to obtain) article from last year on what is actually being done in the trenches.

Researchers did their own background search of an actual jury venire using the following sites as search tools: Google, MySpace, Facebook, LinkedIn, and GoogleBlogSearch. They actually found information on more than a third (36%) of the jurors (in our experience, this is a fairly high proportion, and suggests that this was probably an urban venire).

They performed four separate searches on each of the five sites: full name, full name + state, full name + city, and full name + date of birth.

However, 94% of the information they found was procured via simple Google searches. Only 6% of the information they found was unique to other internet sites. On the other hand, their strategies for ensuring they had the correct “Joe Johnson” were not as intensive as we actually do in our internet searches where accuracy is critical.

The researchers’ [common sense] interpretation of finding the vast majority of information in one spot was that it really was not particularly efficient nor effective to search multiple sites– it is more efficient to stick with Google.

They then turned to lawyers, trial consultants, law students and undergraduates to see the level of information known on social media, attitudes toward use of that information in jury selection, and what was actually being done (and taught) in the trenches of litigation advocacy and law school classrooms about juror’s right to privacy as well as the possible ethical issues in using online search tools for jury selection.

Study participants identified four areas wherein they saw ethical issues:

  1. juror rights [either a right to privacy or the idea that they should not post information online if they wanted privacy],
  2. defendant/accuser rights [a fair and impartial jury is a constitutional right but some thought these online searches ethical and indicative of competent lawyering while others did not],
  3. court processes [some felt the jury selection process should be uniform across individual jurors and those with online presence would be subject to unfair scrutiny] and,
  4. the sites themselves [using the sites for purposes other than social networking is inappropriate and the information is of questionable validity].

It’s an interesting article although the sample sizes are quite small (175 undergraduates, 27 law students, and 11 trial consultants and trial lawyers). The authors see this as an initial foray with follow-up work to be done in the future. The takeaway for us is this: when time pressure is intense–the most bang for your buck comes from a Google search. When you have ample time and budget (perhaps for the high-profile trial) using other searches may be worthwhile if the extra 6% is critical information to have. If, for instance, the value of their home, the model of car they drive, the level of their education, or the number of people who live with them is crucial, there are better ways to find it unless you do a lot of drilling-down through Google links. The authors also recommend the use of paid search sites and perhaps, even a private investigator.

We think we’ve seen the gamut of investigations, ranging from none to those using both paid search sites (in the event you don’t know this, “privacy” is largely a pleasant fiction) and private investigators. Even in the latter cases, though, our work in slogging through site after site after site (in search of that elusive 6%) did yield information previously unknown. Whether it was essential information or not is highly variable. The overall cost benefit analysis of social media research during voir dire remains, for us, an open question. It just depends.

Neal, TMS, Cramer, RJ, Ziemke, MH, & Brodsky, SL (2013). Online searches for jury selection. Criminal Law Bulletin, 49 (2)

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A new issue of The Jury Expert!

Friday, February 7, 2014
posted by Rita Handrich

TJE_logo-300x99The Jury Expert is a trial skills magazine for attorneys, written by trial consultants, and published by the American Society of Trial Consultants as a (free) service to the litigation community. The February 2014 issue just published and it was worth waiting for!

Here’s a description of what you will see in our latest issue when you visit The Jury Expert’s website:

The ABCs of Religiosity: Attitudes, Beliefs, Commitment, and Faith: Gayle Herde writes this practical article on how you can understand the role religious beliefs could play in juror deliberations. How to measure religiosity (by looking at attitudes, beliefs, commitment and faith), how to listen to responses in voir dire to “hear” religiosity without asking for direct expressions on the role of religion in a potential juror’s life, the relationship of political persuasion and religion, the role of non-belief, and how to structure your SJQ effectively.

Neuroscience, The Insanity Defense, and Sentencing Mitigation: Adam Shniderman gives us a very current, plain language review of the neuroscience arena. What does all the conflicting media coverage mean? What does the research really say? How can you best defend a client with neurological issues? This is a terrific summary of how to understand the “my brain made me do it” media coverage distortions, learn what the research actually says, and then plan accordingly.

A (Short) Primer on Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Culture in America: Alexis Forbes brings us all up to date on research, why it’s important to understand this culture, and terminology. She includes helpful charts that visually demonstrate the relationships between common terms and even a “say this” and “don’t say that” graphic to help you communicate without offending. You may think you are up to date. Here’s a simple question: Do you know what ‘cisgender’ is? Go read this!

Defense Responses to Jailhouse Informant Testimony: Brittany Bates, Rob Cramer, and Robert Ray bring us this information on how to defend against allegations about your client by a jailhouse informant. From reviewing the literature to offering ideas for pre-trial research and SJQs, this is a practical article for when you are faced with damaging testimony from your client’s alleged jailhouse confidant.

Metaphors and the Minds of Jurors: We are very familiar with the power of the story model for case presentation but, according to Ron Bullis, we may not have paid as close attention to the power of the metaphor. Read this to learn how to listen for metaphors in deposition to hear (and know how to defuse) opposition arguments. This is a practical article that highlights the importance of the metaphor–how you can use the metaphor powerfully, and how you can defuse the power of opposing counsel’s metaphor.

Why Do We Ask Jurors To Promise That They Will Do the Impossible? Suzy Macpherson asks us to think about the impossibility of setting aside preconceived notions, life experiences, and values in order to be “fair and impartial”. This is a practical article that will leave you thinking about how to ask seemingly simple questions quite differently.

A new Favorite Thing: Hate spam? Especially hate how you are able to catch it at your laptop or desktop but it creeps onto mobile devices? Here’s a terrific and inexpensively priced product that will make you smile every time you get email showing you what they caught at the server level so you never have to waste time deleting spam from your smart phone or tablet again! (You are welcome.)

The Top 10 Favorite Articles from The Jury Expert in 2013! Don’t you hate it when you don’t know about something many of your friends, colleagues, and opposing counsel know? Here’s a shortcut for you: This is a list of the top 10 articles our readers (your friends, colleagues and opposing counsel) explored in 2013. Catch up quick!

As Editor of The Jury Expert, one of the real benefits for me is reading all this information first. I love learning new things and being surprised by novel ways of considering complex issues. Please visit this new issue of The Jury Expert now.

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Narcissism and Social Media Use

Friday, January 17, 2014
posted by Rita Handrich

Twitter narcissistsWe’ve seen a lot of commentary about narcissistic Millennials and how that self- involvement shows up in their use of social media. Well, yes–and not so much– according to new research. The researchers focus on whether one is an active user or a passive user of social media. (Active users create content while passive users read content by others.) 

The researchers compare Twitter use and Facebook use and believe that Facebook is reciprocal and interactive (i.e., you have ‘friends’) while Twitter is not necessarily either reciprocal or interactive (i.e., you have ‘followers’). What they really wished to explore, however, was the motivation behind updating status (on Facebook) and tweeting (on Twitter). They completed two separate studies, one with college students and the second with adults:

Study 1 (the college sample): 515 participants, average age 20.8 years with a range from 18 years to 29 years. The participants were 60% female and 90.7% Caucasian.

Study 2 (the adult sample recruited via Amazon’s Mechanical Turk): 669 participants, average age 32.5 years with a range from 18 years to 75 years. The participants were 55% female and 78.6% Caucasian. Slightly less than half (46.7%) had a bachelor’s degree or above.

In each study, the participants completed a measure of narcissism and were asked how many times each day they updated their Facebook status, or how many different times they tweeted each day. They were also asked about their motivations for participating in either or both social media platforms (e.g., to keep people updated on my life, to gain additional friends or followers, or to be admired by others).

The researchers found the narcissism score was a stronger predictor of the number of Facebook friends than of Twitter followers for both the college group and the adult group. (The researchers say this might be related to the platforms themselves. On Facebook, you can make direct friend requests but on Twitter you need to post interesting tweets to gain followers.) What is most interesting to us, however, is that the researchers found generational differences in their data.

Narcissistic college students preferred to post their content on Twitter.

Narcissistic adults preferred to post their content on Facebook.

The researchers say it may be because college kids grew up with Facebook and it is standard for them to update their Facebook status. Twitter, on the other hand, is newer and (perhaps) more linked to prestige (and therefore a boon to the young narcissist). Adults, on the other hand, see both networks as new technology and so, say the researchers, it is a more “intentional choice” to update their status and the results show active participation in Facebook is more reflective of narcissism among adults.

The Weekly Standard also has an interesting article on Twitter–which they refer to as the “Twidiocracy”. The point they make is that people used to write more intelligently than they spoke, “but now a scary majority tend to speak more intelligently than they tweet”. It’s a very negative article (as you can likely intuit from the word Twidiocracy) and offers random factoids like these:

28% of iPhone users check or update Twitter before they get out of bed (48% do it after they’ve gone to bed).

31% of 16-25 year olds update their social media accounts while “on the toilet” and 11% of those under age 25 allow interruptions “by an electronic message during sex”.

1 in 3 people who visited the Facebook site felt more dissatisfied with their lives after that visit and that dissatisfaction was related to feelings of envy or insecurity.

That list goes on and on. For us, the most interesting tidbit in the Twidiocracy article was this: “A yearlong Pew study…found that Twitter users tend to be considerably younger and more liberal than the general public. But whether tweets tended to skew liberal or conservative was almost immaterial. Twitter reactions to current events was often at odds with overall public opinion, and it was ‘the overall negativity that stands out’.”

Or, as Pew actually puts it, “Twitter is not a reliable proxy for public opinion”.

While not a big shocker, it’s a terrific reminder. Only 16% of US adults use Twitter. That means 84% of US adults do not. While it is easy to become convinced from tweets that an issue is critically important or an opinion is almost universally held–it just isn’t true. You have to read research and sample more broadly based opinions than the fairly small social media samples. We are thankful there is a Pew Research Center and that none of us are forced to accept either the Twitter search function or the Weekly Standard’s versions of the truth at face value.

Davenport, SW, Bergman, SM, Bergman, JZ, & Fearrington, ME (2014). Twitter versus Facebook: Exploring the role of narcissism in the motives and usage of different social media platforms. Computers in Human Behavior, 32, 212-220

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online researchOur friend Charli Morris pointed us to an article published by the Georgia Trial Lawyers Association focused on the online research of potential jurors. In the article, Matt Wetherington discusses ethical boundaries and looks at what constitutes a ‘communication’ with a juror. Given the nature of social media and the internet in general, he gives specific suggestions for gathering information from search engines (e.g., Google, Yahoo, Bing, et cetera), social networking sites (e.g., Facebook, MySpace, Twitter, LinkedIn and Pinterest), and resources for searching backgrounds (e.g., Lexis and Westlaw, state Department of Corrections, Spokeo and TLO).

He covers a huge quantity of information in four pretty pithy pages. He concludes with this:

“Admittedly, the vast majority of information gleaned from these websites will be unhelpful. However any helpful information can be invaluable and the success rate of these searches will only increase as social media usage continues to grow.”

About the same time, John Browning wrote an article for The Jury Expert that offers an update on the issues you must consider as you prepare for online research. John talks about the affirmative duty to research the jury pool and the ethical issues one must consider in such research. John concludes his piece this way:

“Lawyers are increasingly being held to a higher standard of technological proficiency and, as the use of social media platforms becomes more widespread, clients—and not just courts and ethics committees—expect lawyers to avail themselves of every technological weapon in their arsenal. Doing so in an ethical manner is imperative.”

We’ve written before about the painstaking and often tedious work of researching potential jurors. Shortcuts in doing that research have been found over the years since 2010 (when we wrote our post), but it’s still pretty tedious work with rare victories such as that unearthed and brought to light during the recent voir dire for the George Zimmerman trial. Instead of relevant information, you are more likely to find innocuous or potentially embarrassing information or the ever-present photos in random situations, but it is rare to find information powerful enough to strike a juror for cause.

We hope you’ll take a look at both of these articles. The two pieces, in combination, offer a terrific overview and initial strategy for your online research.

Browning, J. 2013 As Voir Dire Becomes Voir Google, Where Are the Ethical Lines Drawn. The Jury Expert, May.

Wetherington, M. (2013). Online research of potential jurors: A survey of resources and ethical boundaries. Verdict: The Journal of the Georgia Trial Lawyers Association (Summer)

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A new issue of The Jury Expert has just uploaded and you will want to see the work collected there.

Pretrial Publicity and Courtroom Umami 

Two trial consultants tell you how to throw a ‘spice bomb’ at negative pretrial publicity.

As Voir Dire Becomes Voir Google, Where Are the Ethical Lines Drawn? 

What is your obligation when it comes to social media research of prospective jurors or witnesses? What do you need to avoid in the process?

Do You See What I See? How a Lack of Cultural Competency May Be Affecting Your Bottom Line 

Used to be that we thought of ‘cultural competency’ as a “nice and politically correct thing”. Not any more. Now being culturally competent is essential to your financial bottom line.

Hackers, Hosts & Help Requests 

The Jury Expert is increasingly popular–with hackers as well as bona fide readers. And that is expensive. Help us out?

The Scared Witness: A Chapter from “Can This Witness Be Saved”

Ever had a witness who was not just scared but rather was truly terrified? Here’s what you need to do.

Why Telling a Witness That It’s OK to Say They Don’t Know Is Good for Justice 

Directly telling a witness they can say they don’t know if the suspect is in the lineup improves their accuracy in identification.

The Interview-Identification-Eyewitness Factor (I-I-Eye) Method for Analyzing Eyewitness Testimony

Here’s a three-step teachable model for assessing the accuracy of eyewitness testimony. For law enforcement, attorneys and jurors. One of the trial consultant responses on this piece is from Rita Handrich of Keene Trial.

80 iPad Apps Attorneys Love, 8 Days a Week: An App Strategy for Work, the Courtroom, and Your Personal Life 

Love your iPad? You’ll love it a lot more when you’ve read through these strategies for improving your work and personal lives. There’s an app for that!

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