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Archive for the ‘Internet & jurors’ Category


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!


lucy and hamMy dog was bathed and groomed on Wednesday. On Thursday, I cooked a ham and left it to cool on the stovetop. There were workers in the house all day long and the dog was irritable and behaving badly. I went upstairs to check on work progress and heard a crash and a yelp and came downstairs to see my freshly bathed basset hound covered head to toe to belly in dripping ham juice with the broken glass roaster all around her (not to mention my ham). She was so shocked she didn’t know whether to lick the floor or herself. The groomer got a good laugh out of the story and at the miserable and greasy dog.

Then later on Thursday, I saw a story over at LexisNexis titled “In A Lurid Story Of E-Discovery And Ham, Magistrate Judge Tells Parties To Pay For A Forensic Expert To Sort Through The Data”. Coincidence? I think not. On the other hand, we do need to comment that while this is a light-hearted post, the potential traumatic impact of workplace sexual harassment and wrongful termination is very real, and not funny at all.

In this “lurid” tale of the HoneyBaked Ham company and allegations of both sexual harassment and retaliation–there are multiple elements to consider in the EEOC-filed class action suit against HoneyBaked Ham: social media, workplace climate, the emotional impact of victimization, pejorative labels, sexual harassment, retaliation, and what is private and what is not. HoneyBaked Ham wanted to assess the Facebook account activity of female members of the class action suit and told the judge they thought there would be relevant Defense information to be found via an e-discovery process on those Facebook pages. The judge agreed to the Defense request for e-discovery:

Judge Hegarty determined that “there is no question [HoneyBaked] has established that the documents it seeks contain discoverable information.” For example, he pointed to a photo one of the women posted of herself wearing a t-shirt imprinted with a foul adjective-easily the most offensive term used to describe a woman-a term she says a HoneyBaked employee used to describe her. Also on her Facebook page, according to the judge’s order, this class member shared her financial expectations from the suit, her feelings about the loss of a pet and a broken relationship. She also described her positive outlook on life post-termination, her sexual aggressiveness, her post-termination employment, her sexual liaisons, her income opportunities, and sexually amorous communications with other members of the class. The list goes on. (Are you ready to close your Facebook account yet?)” 

In brief, the judge appointed a special master to go through Facebook, social media accounts, emails, text messages, and so on to find any and all communications that might be relevant to the class action suit. A questionnaire was designed to focus the e-discovery so that not everything was reported simply because it was salacious. Whew. Does this mean there is privacy online after all?

Probably not. This is a cautionary tale. A veritable object lesson. And here is the lesson. Do not leave your freshly baked ham cooling within reach of an inquisitive and food-driven basset hound. And whether you work for the HoneyBaked Ham Company or elsewhere, do not post things on Facebook (or email them, or text them, et cetera, et cetera) unless you are comfortable with them being the subject of e-discovery at some point in the future.


catfishA few weeks ago, I was eating a late lunch and turned on the TV and watched the Katie Couric talk show for the first time. She was talking to two 20-something guests about the perils of online dating. They talked about ways to protect yourself from deceptive “catfishing” by using Google image search or examining social network profiles for inconsistencies and at one point Katie said “My gosh, you have to be like Columbo these days!”. Both of her young guests smiled politely but their blank faces made it clear they had no idea who Columbo was.

One of the guests was Nev Schulman from the movie Catfish. If you don’t know this story, Nev met a woman named Megan online who was gorgeous and a dancer and a singer and he fell in love. When he showed up on her doorstep to meet her in person, Megan turned out to be a 40-something housewife named Angela who was diagnosed with schizophrenia and caring for two disabled stepsons. Part of the reason Nev was on the Katie show was to advertise his new TV show (Catfish the TV show). In this show, Nev travels the country visiting people who are involved in online relationships with people who always seem to turn out to be imposters hiding behind fake profiles. He teaches them how to investigate their online loves and dispenses a blend of empathy and sincerity that is very likable while their fantasies crumble about their feet.

Shortly after I watched this show, I saw a story at Courthouse News about a woman suing for $10M because someone she met on their website “hid in her garage, stabbed her 10 times and kicked her in the head until she ‘stopped making the gurgling noise’”. She says didn’t warn her about the possibility of meeting “an individual whose intention was not to find a mate, but to find victims to kill or rape”. She did not sue her attacker. She couldn’t. He died in prison while “serving 28 to 70 years for killing an ex-girlfriend”. begs to differ:

“What happened to Mary Kay Beckman is horrible, but this lawsuit is absurd,” said. “The many millions of people who have found love on and other online dating sites know how fulfilling it is. And while that doesn’t make what happened in this case any less awful, this is about a sick, twisted individual with no prior criminal record, not an entire community of men and women looking to meet each other.”

It isn’t as though these are isolated cases or very, very fringe behavior. These are sad, sad stories involving a pretty universal desire to be loved and cherished. It’s been hard to miss the publicity surrounding Notre Dame’s Manti Te’o and his own catfishing experience with a very unlucky (and then dead and then alive again) girlfriend. The “girlfriend” turned out to be a disturbed young man who once auditioned for the television show The Voice.

It’s a difficult issue. We’ve worked a couple of cases where people were assaulted by others they had met online. One case involved a minor girl and the other involved a grown woman. In both cases, the assailant lied about who they were, how old they were, and what their intentions were, while all the while enticing the victim to meet them. Both stories were horribly sad and life-changing for the victim. Yet, in both situations, our mock jurors said the fault lay with the victim for “lying to her mother and meeting this guy” or “telling him where she lived”. Jurors thought these women had learned a very hard and cruel lesson but they should not be compensated by the online service for using bad judgment.

There are discussions occurring as to how to respond from a legal standpoint to the perpetrators of these hoaxes. In our experience, jurors think these are examples of poor personal responsibility by the victim of the hoax. The online service was scrutinized, but overall the mock jurors felt that users of these services know that there is no vetting of community members, and anyone who assumes authenticity in online disclosures is, at best, naïve. This is an area we will keep up with as new definitions and practices emerge to keep up with our changing definitions of what constitutes a “relationship” in a social media world.



facebook-graph-searchWe are always on the prowl for tools to help with litigation research. This one took us a little by surprise when we read a piece on it in the Atlantic. While Facebook apparently rolled this service out to be more of an information source, we wonder if they thought about how Graph Search could be used for more nefarious or humiliating purposes. For example, here are some recent graph searches done on Facebook and helpfully posted on Tumblr within 24 hours of Graph Search’s launch.

Current employers of people who like racism.

The spouses of people who like Prostitutes.

The mothers of Jews who like Bacon.

Single women who live nearby and like getting Getting Drunk.

And there are likely a lot more out there without the faces and names blurred for privacy. This new Facebook tool raises two issues for us:

First, please check your Facebook Privacy Settings again! This is something you need to do routinely but especially now! What you assume is private or only available after hours of scrolling through your own ancient history is now accessible and quickly.

Second, this raises many questions about litigation research. Now you can quickly search for attitudes and opinions toward various corporations or litigation issues. How do people feel about your corporate client? About gay marriage? About gun control? About deception? Some of the answers you may already know–because they are controversial and divisive. But the resource may also give you new areas for discovery or for questions in pretrial research.

One could argue that Facebook posts are less “troll-ish” than what you see in the Comments section of mass media news sites. People on Facebook are, after all, posting for their friends (however loosely defined). But we don’t know that for sure. Regardless, this is a sure tool for social media analysts to apply to multiple questions, and a potentially valuable online discovery tool. Your peers have already been at least considering it. As has the mass media.




We’ve written for The Jury Expert a fair amount. In case you don’t know, The Jury Expert is a free publication from the American Society of Trial Consultants that is all about the art and science of litigation advocacy.

Our articles in The Jury Expert are focused on litigation advocacy and meant to help you do your job with the latest information available. Take a look at what we’ve done in the past couple of years.

The ‘Hoodie Effect’: George, Trayvon and How it Might Have Happened

by Douglas L. Keene, Ph.D. and Rita R. Handrich, Ph.D.

Two trial consultants apply social science research findings to the crafting of plaintiff and defense trial narratives. How can the George Zimmerman/Trayvon Martin case be explained to jurors?

Book Review: Ideology, Psychology, and Law

by Rita R. Handrich, Ph.D.

A review of the new encyclopedia of the intersection of the law and mind sciences: Ideology, Psychology, and the Law (2012).

Talkin’ ‘bout our Generations: Are we who we wanted to be?

by Douglas L. Keene, Ph.D. and Rita R. Handrich, Ph.D.

The four generations in the jury box: the same and yet, different.

Generation X members are “active, balanced and happy”. Seriously?

by Douglas L. Keene, Ph.D. and Rita R. Handrich, Ph.D.

What’s happened to Generation X? An update on these now 30-45 year old jurors–you may be surprised at what they’ve done.

Between Coddling and Contempt: Managing and Mentoring Millennials

by Douglas L. Keene, Ph.D. and Rita R. Handrich, Ph.D.

See Part 1 of this article: Tattoos, Tolerance, Technology, and TMI: Welcome to the land of the Millennials (aka Generation Y) in the July 2010 issue of The Jury Expert   “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just…

Tattoos, Tolerance, Technology, and TMI: Welcome to the land of the Millennials (aka Generation Y)

by Douglas L. Keene, Ph.D. and Rita Handrich, Ph.D.

See the follow-up to this article: Between Coddling and Contempt: Managing and Mentoring Millennials in the September 2010 issue of The Jury Expert.    For Baby Boomers, the don’t-trust-anyone-over-30 lyrics to “My Generation” by Pete Townshend of The Who (1965) bespoke the generation gap. Pete wrote these lyrics at the…

Panic Over the Unknown: America Hates Atheists

by Douglas L. Keene, Ph.D. and Rita R. Handrich, Ph.D.

“If ‘Guess Who’s Coming to Dinner’ was remade today, the ‘shocking’ guest would no longer be a highly accomplished, educated and sophisticated black man (Sidney Poitier) but a highly accomplished, educated and sophisticated atheist.”1 “The prisons are probably filled with people who don’t have any kind of a spiritual or…

Online and Wired for Justice: Why Jurors Turn to the Internet (the “Google mistrial”)

by Douglas L. Keene, Ph.D. and Rita R. Handrich, Ph.D.

“There is an online quitting-Facebook-for-Lent support group. But how is it possible to communicate support on Facebook without breaking your vow? Serving on a jury is one of those instances when the cell phone and the laptop are best left at home1.” Trials have been being disrupted due to the…

Book Review: The Juror Factor: Race and Gender in America’s Civil Courts

by Rita R. Handrich, Ph.D.

Sonia Sotomayor’s nomination to the US Supreme Court in May 2009 unleashed a storm of controversy based on her remarks on her own judicial decision-making:  “I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better

Fairness, Justice and True Understanding: The Benefits of Peremptory Strikes

by Douglas L. Keene, Ph.D.

Editor’s Note: It’s been a busy month for juries in the news and Doug Keene (President of ASTC) has spent hours on the phone with reporters attempting to clarify the issues and to communicate the position of the American Society of Trial Consultants (ASTC) on issues related to jurors and…

Cross-Examination of the Narcissistic Witness

by Douglas L. Keene, Ph.D.

Editors Note: Following publication of our September 2008 feature on the preparation of narcissistic witnesses, Doug Keene received queries about how to conduct cross-examination with a narcissistic witness. This brief article addresses questions on how to approach this challenging cross-examination process.    Have faith It is natural to fear that…

The Preparation of Narcissistic Witnesses: “I’m Better Than I Need To Be!”

by Douglas L. Keene, Ph.D.

Shortly after the July issue of TJE published, we received an email from an attorney-reader in response to the Christie Brinkley divorce coverage wherein the court-appointed psychologist described Peter Cook, as a “narcissist with an insatiable ego who needs constant reassurance that he is a terrific guy” (CBS, 7/8/2008).”I…
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