Jury Selection Social Media is Changing the Game Revised · NETWORKINGSITES| JANUARY2017(2016), ....
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OCPA Educational Conference David Cannon, Ph.D. 1 JURY SELECTION How Social Media is Changing the Game OCPA 2018 Educational Conference • Co-Founder, Trial Innovations • Ph.D., Clinical Psychology and Law • 21 Years in field of Trial Consulting David Cannon, Ph.D. [email protected] 310-927-5879 I. Challenges of Jury Selection A. Juror Bias B. Juror Candor C. The “Minimization Effect” D. The Set-aside Question II. Overcoming those Challenges A. Social Media B. Voir Dire C. Questionnaires D. Rating Jurors E. Avoiding the Set-Aside Question Presentation Overview
Transcript of Jury Selection Social Media is Changing the Game Revised · NETWORKINGSITES| JANUARY2017(2016), ....
OCPA Educational Conference David Cannon, Ph.D.
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JURY SELECTIONHow Social Media is Changing the Game
OCPA 2018 Educational Conference
• Co-Founder, Trial Innovations
• Ph.D., Clinical Psychology and Law
• 21 Years in field of Trial Consulting
David Cannon, [email protected]
I. Challenges of Jury SelectionA. Juror BiasB. Juror CandorC. The “Minimization Effect”
D. The Set-aside Question
II. Overcoming those ChallengesA. Social MediaB. Voir Dire
C. QuestionnairesD. Rating Jurors
E. Avoiding the Set-Aside Question
Presentation Overview
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Juror Bias
CONCEPTUAL FILTERS: ATTITUDES AND BELIEFS
Result in selective perceptions of the evidence
We accept or attend to things that agree with our preconceptions
We fail to hear or ignore things that disagree with them
HOW MALLEABLE ARE JURORS�ATTITUDES AND BELIEFS?
Acquired
Beliefs
AcquiredAttitudes
PersonalExperiences
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THE PROCESS OF DELIBERATION
Blends the facts of the case we put on, with the perceptionsand experiences of the jury
People DO change their minds, but they would RATHER not
Juror Candor
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It takes a while for people to warm up….
Voir Dire:
Smoking related illnesses: Did not raise hand – Know
someone with smoking related illness
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Case Relevant Experiences
“I don’t do bumper stickers, so I was safe from individual questioning on that one.”
Straight from the Horse’s Mouth
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Jurors often look for reasons toexclude themselves from having to respond
to questions.
Getting Inside Jurors’ Heads
The “Minimization Effect”
Examples of Minimization Language
“I just read extensively in the newspaper.”
“Nothing that stands out.”
“Other than that, I haven’t really followed it too well.”
“I just kind of followed the newspaper articles.”
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• Use juror questionnaire
• Attorney conducted voir dire
• Encourage honest disclosure
• Reduce the anxiety of the situation
• Follow-up in private
• Social media and backgrounds
What to Do
Now we have another avenue to get to know the juror.
How does the juror present himself or herself to the online world, and how is this consistent or inconsistent with what we are observing in the courtroom?
SOCIAL MEDIA AND THE INTERNET
Social Networks– Facebook, Twitter, LinkedInOpen Web – Google, Bing, Yahoo! Deep Web – Public RecordsArchived Web – Cached Google Search
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EFFECTIVE RESEARCH SKILLS
No FootprintsTiming and Red HerringsEffective Search ToolsIdentifying Useful ResultsInsufficient InformationAvoid LiabilityCompliance
POPULAR PLATFORMS
68% Facebook28% Instagram (IG)26% Pinterest25% LinkedIn21% Twitter
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USING RELEVANT PLATFORMS
FACEBOOKPrivate v. Public Likes GroupsFriendsPicturesPosts
LINKEDIN Adjust SettingsInput LocationConnectionsSimilar Concepts
LikesGroups
EmploymentEndorsePremium Profiles
SEARCH FOOTPRINT
ß LIMITATIONS
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Limited Visible TweetsPublic ProfilesHashtagsPrivate Users
“Follow” Button
FINDING HISTORIC TWEETS
USING SEARCH ENGINES
GOOGLE#1 Search EngineQuotationsKeywordsConnecting TermsResults
ImagesMaps
Google EarthUse Chrome
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PUTTING IT ALL TOGETHER
Credible ResourcesRecognize PatternsTracking TimeCritical ThinkingFact-DrivenConcise Summaries
ILLUSTRATIONS
PREVENTING PROLONGED TRIALS
Florida civil juries consist of six (6) jurors, with only three (3) strikes permitted per party, and a limited number of available alternates. This was a premises liability case. Plaintiff alleged injuries and losses due to the negligence of the Defendant (our client). We were looking for potential jurors with prior lawsuit histories, criminal records, and prior affiliations with the Defendants. Local demographics favored the Plaintiff. Googling a final name in quotations yielded a criminal record of “check-kiting,” resulting in removal for cause.
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FBI: FACEBOOK INVESTIGATION
If an individual does not want to be found, then even with a wealth of facts known about an individual can be irrelevant. After a week of exhausting resources, the subject’s address was found through an extensive Facebook investigation. This was accomplished by tracking common friends, family, and fans. Identifying characteristics were visible outside the subject’s home via Google Earth, resulting in a response from the subject after a period of ignored responses.
Have you ever been arrested?
NO
Have you ever been arrested?
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Oh, My bad. I thought you meant, was I ever arrested and represented by the county public defender. Also, my
case isn’t resolved. So, that is why I thought it didn’t apply to me.
Getting Inside Jurors’ Heads
Law enforcement
LEGAL ETHICS
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MODEL RULES:FORMAL OPINION 466 (2014)
Electronic Social Media (ESM)“For ESM and other websites that are publicly available, [a] lawyer may review them since ‘The mere act of observing that which is open to the public would not constitute a communicative act that violates 3.5(b).’”
“[A] lawyer cannot send an ‘access request’ to the website subscriber as this would constitute a prohibited communication with a juror. [He] also cannot do so through the acts of another. See Model Rule 8.4(a) Misconduct.”
Unauthorized Communications
CASE LAW
SLUSS V. COMMONWEALTH(2012)
“Facebooking the jury”
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JOHNSON V. MCCOLLOUGH(2010)
Case.net – Johnson Standard
• Look out for minimization language
• Do not be discouraged
• Continue to probe with open-ended questions
• Look for consistencies and inconsistencies with information that is available online.
Putting it all together
Voir Dire
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GET JURORS TO OPEN UP
Draft Questions in advance. Start broad and get specific. Ask if anyone has had experiences or if friends or family
members have had them. Ask attitude questions. Don’t worry about contaminating the pool. It’s harder than you think.
Reinforce responses. Loop others in – “Who else feels that way?”
Keep it conversational (Talk show style).
Juror Questionnaires
INCLUDE QUESTIONS YOU DON’T WANT TO ASK(PRIVATE AND PERSONAL QUESTIONS)
Arrest history Lawsuit history Medical history Substance abuse Death of loved ones Recent losses Perceptions of your client
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EMPLOYMENT; LEADERSHIP POTENTIAL
EMPLOYMENT SATISFACTION; EMPLOYMENT HISTORY; BUSINESS OWNERSHIP
SKILL SETS; LEADERSHIP; DE FACTO EXPERTISE
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UNION MEMBERSHIP —GRIEVANCE HISTORY; LEADERSHIP
SOCIOECONOMIC STATUS
EDUCATIONAL BACKGROUND; LEADERSHIP; DE FACTO EXPERTISE
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POTENTIAL LEADERSHIP; ACTIVISM
POLITICAL ATTITUDES
OTHER ADULTS AT HOME; POSSIBLE SOURCES OF INFLUENCE/INFORMATION
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OTHER SOURCES OF INFLUENCE/INFORMATION
LEADERSHIP
SOURCE OF ATTITUDES OR BELIEFS
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LEADERSHIP; POTENTIAL FOREPERSON
CLEAN-UP QUESTIONS
Jury Selection: Rating Jurors
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DIMENSION ONE:Bring it all together to rate the jurors based on their :Constellation of Attitudes, Beliefs and Personal Experiences; Online Info
1
Negative
3
Neutral
5
Positive
DIMENSION TWO:
“Influence Quotient”
1
Non-ParticipantPersuader
5
Persuader
3
Participant
JURY SELECTION
1. Give advanced thought to jurors you want and don’t want.
a. Make decisions based on these hypotheses2. Rate Jurors on Two Dimensions:
a. Constellation of attitudes, beliefs, personal experiences, social media, and backgrounds
b. Leadership or “Influence Quotient”3. Stick with your initial impression to minimize the
likelihood of regrets from second guessing yourself.
a. “Play out” how the jury will look after anticipated strikes before striking jurors.
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WHAT TO DO?
1
5
1
3
5
5
5
1
5
1
?
?
?
?
?
RATING LEADERSHIP
What to Avoid
• Avoid asking the hard questions upfront (Warm up the jurors)
• Start with open-ended question
• Avoid the set-aside question
“All looks yellow to the jaundiced eye.”-Alexander Pope (1709)
What to Avoid: The Set-aside Question
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Common Examples
“Can you be fair and impartial? Can you follow the judges instructions and
listen to the evidence?”
“Can you set-aside your bias and decide this case solely on the evidence
presented?”
“I am an open-minded and fair man. I could, I would look at the evidence. I believe he is innocent until proven guilty”
John Walker Lindh: American Taliban
• “He was involved with the enemy; he is as bad as Bin Laden”
• Definitely a traitor• Probably a terrorist
“I would consider all the evidence presented by the court and give a fair opinion. We all have to be careful as to what we say about Mr. Lindh.”
John Walker Lindh: American Taliban
• “He is definitely guilty because he was in conspiracy with the Taliban against the United States to kill and do harm to our people
• “He should receive the minimum life imprisonment or the death penalty
• Definitely a traitor• Definitely a terrorist
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What to Avoid
• Avoid the set-aside question
• Avoid loaded language
• Lead the juror to where you want him to go
CITATIONSJohn G Browning, Voir Dire Becomes Voir Google: Ethical Concerns of 21st Century Jury Selection Lawyer review of jurors' presence on the Internet (2016), http://www.americanbar.org/publications/youraba/2015/november-2015/lawyer-review-of-jurors-presence-on-the-internet.html.
Johnson v. McCullough, 306 S. W. 3d 551 (Mo. 2010) (en banc).
Margaret Bull Kovera & Brian L. Cutler, Consultation During Voir Dire, Jury Selection 143–154, 143-154 (2012).
Rule 3.5: Impartiality & Decorum of the Tribunal, Rule 3.5: Impartiality & Decorum of the Tribunal | The Center for Professional Responsibility (2017), http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professionalconduct/rule_3_5_impartiality_decorum_of_the_tribunal.html.
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CITATIONS
Shannon Greenwood, Andrew Perrin & Maeve Duggan, SOCIAL MEDIA UPDATE 2016 PEW RESEARCH
CENTER: INTERNET, SCIENCE & TECH (2016), http://www.pewinternet.org/2016/11/11/social-media-update-2016/.
Sluss v. Commonwealth, 381 S. W. 3d 215 (Ky. 2012).
Theodore O Prosise, Shadow Juries: A Unique Advantage in Civil Trials ABA Section of Litigation (2009), https://apps.americanbar.org/litigation/litigationnews/trial_skills/trial-practice-shadow-juries.html.
Top 15 Most Popular Social Networking Sites | January 2017, TOP 15 MOST POPULAR SOCIAL
NETWORKING SITES | JANUARY 2017 (2016), http://www.ebizmba.com/articles/social-networking-websites.
