Jury Selection Ethics - Professional Liability Defense Federation

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Ethics in Jury Selection
• What information is available?
• How can we find it?
• How far can we go to find it?
• Is jurors’ social media a public record?
• When does investigation constitute improper contact with
a prospective juror?
• What if inadvertent contact is made?
• What is our duty to investigate jurors?
• What are the ramifications if we don’t?
Ethics in Jury Selection
• Voir Google: Use of Social Media in Jury Selection
• Ethical Obligations in Juror Background Research
• Ethical Obligations to Disclose Juror Relationships
• Ethical Obligations of Competence
• Jurors and HIPAA
• Ethical Obligations in Post-trial Juror Interviews
Use of Social Media in Jury Selection
How Widespread is Social Media?
• Facebook = 500 million users
• Twitter = 600 million users
• Instagram = 150 million users
• YouTube = 1 billion users each month
67% of Americans with Internet
Access use Social Media.
Social Media Use is Consistent Across:
• Racial & Ethnic Boundaries
• Educational & Socio-Economic Boundaries
• Urbanity
What does this mean for attorneys?
2 out of every 3 prospective
jurors use social media.
Benefits of Using Social Media in Jury Selection
• Outlet in Which Jurors Voluntarily Engage
• Candid Information
Employment History
Religious and Political Affiliations
Sexual Orientation
Educational Background
Circle of Friends and Acquaintances
Model Rule of Professional Conduct 3.5
Impartiality & Decorum of the Tribunal
“A lawyer shall not … (b) communicate
ex parte with [a juror] during the
proceeding unless authorized to do
so by law or court order.”
Responsible Social Media Analysis
1. Run names through public records database.
2. Use common search engines and social media
3. Include common name variants.
4. Remember the importance of oral questioning
and/or jury questionnaires.
5. Don’t believe everything you read.
Crossing the Line
1. Don’t violate privacy settings.
2. Don’t “friend” potential jurors.
3. Don’t make an enemy of the judge.
4. Avoid the “LinkedIn Problem.”
Methods: Using Social Media in Jury Selection Process
• Research in Advance
• Turn to Jury Selection Consultants
• Perform Real-time Research
Is there an ethical duty
for an attorney to
investigate jurors’
responses on voir dire?
Duty to Investigate?
In Missouri, at least, the answer is yes.
– Missouri Supreme Court Rule 69.025 requires the
attorney to research a jurors’ litigation history.
– Missouri has a free and easily accessible system for
searching for past litigation.
– Arose out of a case where juror’s nondisclosure would
have been easily found on case record system before
No other state has a similar rule, but …
Duty to Investigate?
[T]he evidence which was presented to the Court during the
hearing on Defendants' post-judgment motions was all a
matter of public record. Were Defendants genuinely
concerned before the trial or before the verdict was returned
about the prospective jurors' participation in prior bankruptcies
and the like, they could have and should have looked at the
available public records prior to or during the trial and afforded
the Court an opportunity to take measures to address any
concerns rather than waiting for a verdict to be returned, the
jury discharged, and a judgment entered on the verdict.
Boudreaux v. Pettaway, 108 So. 3d 486, 491 (Ala. 2012) (quoting
trial court’s order and affirming holding)
Duty to Investigate?
At least one Kentucky case has at least implied that a
party did not have a duty to search Facebook after a
juror responded “no” to the Judge’s direct question as
whether anyone was “on Facebook.” The juror lied, and
was “friends” with the victim’s mother on Facebook.
Sluss v. Kentucky, 381 S.W.3d. 215 (Ky. 2012).
Is There a Duty to Disclose Known,
or Suspected, Information?
• What if an attorney becomes aware of
certain facts during trial that indicate a juror
has failed to disclose material information
during voir dire?
Why is this Important?
• In Criminal Trials – The Sixth Amendment
guarantees the right to an impartial jury.
• In Civil and Criminal Trials – Great expense
can be lost if the defendant waits until after the
verdict to raise the issue.
Why is this Important?
• MRPC 3.3 and Ala. R. Prof. Cond. 3.3 –
Candor Toward the Tribunal
– Both state that “[a] lawyer shall not knowingly make
a false statement of fact or law to a tribunal.”
– The comment also states: “There are
circumstances where failure to make a disclosure is
the equivalent of an affirmative misrepresentation.”
Case Example:
• During the course of a criminal trial, defense
counsel finds information that, upon reasonable
investigation, would reveal that a juror has
misrepresented in voir dire the following:
– Her status as a suspended lawyer;
– Her address;
– Her and her husband’s criminal history;
– Her past litigation history.
Case Example:
• Does defense counsel have to:
(1) Investigate the possibility of nondisclosure?
(2) Disclose to the court and the prosecution the
juror’s suspected misrepresentation?
Case Example:
• Held:
– Absolutely. There was sufficient information to
determine the existence of falsehoods.
– A report was generated during the trial that
should have spurred at least further investigation
and certainly disclosure of suspicion.
Case Example:
• Result:
– Defendant’s request for new trial denied.
– The constitutional right to an impartial jury was
waived by the counsel’s conduct.
– The other three defendants who did no
research did get new trials.
– United States v. Daugerdas, 867 F. Supp. 2d
445 (S.D.N.Y. 2012)
Case Example:
• The Daugerdas case was particularly
egregious because of the expense:
– 3 months of trial
– 9,200 pages of testimony
– 41 government witnesses
– 22 million documents during discovery
– 1,300 exhibits
– 9 days of jury deliberations
– $110,569.85 in jury attendance and travel fees
The Basis for Permitting Waiver:
• “Any other rule would allow defendants to
sandbag the court by remaining silent and
gambling on a favorable verdict, knowing that
if the jury went against them, they could
always obtain a new trial by later raising the
issue of juror misconduct.”
– United States v. Costa, 890 F.2d 480 (1st Cir. 1989)
There is one problem
that cannot be solved by
any amount of questioning,
research, consultants
or disclosure.
Is there an affirmative
obligation to report
known or suspected
juror misconduct?
Alabama Rules of Professional Conduct
Alabama Rule of Professional Conduct 3.5
Impartiality and Decorum of the Tribunal
A lawyer shall not:
a) seek to influence a judge, juror, prospective juror or other official
by means prohibited by law;
a) communicate ex parte with such a person except as permitted by
law; or
b) engage in conduct intended to disrupt a tribunal.
Alabama Rule of Professional Conduct 8.3
Reporting Professional Misconduct
A lawyer possessing unprivileged knowledge of a violation of Rule
8.4 [Misconduct] shall report such knowledge to a tribunal or other
authority empowered to investigate or act upon such violation.
A lawyer possessing unprivileged knowledge or evidence
concerning another lawyer or a judge shall reveal fully such
knowledge or evidence upon proper request.
Ethical Obligation
– Currently, there is no Alabama Rule of Professional
Conduct that directly addresses a lawyer’s affirmative
duty to report jury misconduct.
– The Alabama Rules of Professional Conduct state that
“Virtually all difficult ethical problems arise from conflict
between a lawyer’s responsibilities to clients, to the
legal system and to the lawyer’s own interest in
remaining an upright person while earning a
satisfactory living . . . Within the framework of these
Rules many difficult issues of professional discretion
can arise.”
Ethical Obligation – New York Bar Association
New York Rule of Professional Conduct 3.5(d) states that “a
lawyer shall reveal promptly to the court improper conduct by a
member of the venire or a juror, or by another toward a
member of the venire or a juror or a member of her family of
which the lawyer has knowledge.”
Formal Opinion No. 2012-2 entitled “Jury Research and Social
Media” states, in relevant part, “Should a lawyer learn of juror
misconduct through otherwise permissible research of a juror’s
social media activities, the lawyer must reveal the improper
conduct to the court.” The opinion goes on to say that the
“attorneys must use their best judgment and good faith in
determining whether a juror has acted improperly; the attorney
cannot consider whether the juror’s improper conduct benefits
the attorney.”
Legal Obligation
Should you report juror misconduct to the Court?
U.S v. Breit, 712 F.2d 81 (4th Cir. 1983) – “A defendant who remains
silent about known juror misconduct – who in effect, takes out an
insurance policy against an unfavorable verdict – is toying with
the court.”
U.S. v. Desir, 273 F.3d 39 (1st Cir. 2001) – “[A] defendant who has
knowledge of juror misconduct or bias at the time of trial waives
such a claim by failing to raise it until after trial.”
U.S. v. Costa, 890 F.2d 480 (1st Cir. 1989) – “[T]he defendants and
their attorneys had known of the juror’s misconduct before the
verdict but had not come forward with this information until after
the verdict. The judge concluded that this failure to come forward
constituted a waiver of any right the defendants may have had to
raise the issue of juror misconduct.”
Interesting Note re: Jurors’ Obligations
Juror can remain silent until asked an applicable question.
– Thomas v. State, 338 So.2d 1045 (Ala. Crim. App.
1976) - “All parties are entitled to truthful answers
from prospective jurors on examination of the
venire and concealment of facts by silence by
such a prospective juror denies the parties their
right to advisedly exercise peremptory strikes, but
it is permissible for a juror to remain silent until a
question applies to him in a manner demanding a
Is there an affirmative
obligation to report
a relationship between
a juror and a party
or lawyer?
Ethical Obligation
• Alabama Rule of Professional Conduct 3.5 clearly
prohibits ex parte communication with a juror.
• Run same risk of waiving objections and arguments on
Relationship Does Not Necessarily
Mean Juror Will Be Dismissed
• Whitehead v. State, 777 So.2d 781 (Ala. Crim. App.
1999) - Court did not err in failing to remove juror
who stated during voir dire that the victim and her
husband were distant cousins but that this
relationship would have no effect on her ability to
make a decision based strictly on the evidence
because she had no personal relationship with the
victim or his family.
Alabama Rule of Professional Conduct 1.1 –
“A lawyer shall provide competent representation to a
client. Competent representation requires the legal
knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation. A lawyer
and client may agree, pursuant to Rule 1.2(c), to limit
the scope of the representation with respect to a
matter. In such circumstances, competence means the
knowledge, skill, thoroughness, and preparation
reasonably necessary for such limited representation.”
Comment 8 to ABA Model Rule
1.1 Maintaining Competence
“To maintain the requisite knowledge and skill,
a lawyer should keep abreast of changes in
the law and its practice, including the
benefits and risks associated with relevant
technology, engage in continuing study and
education, and comply with all continuing legal
education requirements to which the law is
Best Practices
• Investigate - PROPERLY
• Before Trial
• During Voir Dire
• During Trial
• After Trial
• Ask Court for Social Media Jury Instructions
• Disclose Connections / Improper Contacts
Medical Privacy and Voir Dire
Jurors’ Right to Privacy vs.
Litigants’ Right to an Impartial Jury
Balancing Act
• The “gist of the history of selecting fair
and impartial jurors allows that if the
issue is relevant to determining the bias
or prejudice of a prospective juror then
the question is proper.”
Brandborg v. Lucas, 891 F. Supp. 352, 361
(E.D. Tex. 1995).
Balancing Act
Not relevant =
expectation of
Privacy right
outweighs potential
information litigant
might gain from
Relevant =
expectation of
Right to discover
affecting bias
outweighs right of
Jurors’ Medical Privacy Not a Settled Issue
• U.S. v. McDade
“Just because one gets called into jury service does
not give eager and assiduous counsel the right to …
rummage through one’s medicine cabinet, … perusing
the array of Rx labels.”
But, the court still allowed some inquiry into medical history because it
was relevant to the trial.
929 F. Supp. 815, 817 (1996).
Jurors’ Medical Privacy Not a Settled Issue
• Trial court could not “compel all potential jurors
to waive HIPAA protections when they are
questioned about their personal medical
State v. Wise, 200 P.3d 266, 269 (Wash. App. 2009)
Safeguards for Jurors’ Medical Privacy
• Jury questionnaires
• Anonymous jurors
• Judicial control of voir dire
• In camera questioning
– With counsel present and on the record
Post-Trial Contact with Jurors
• 15th Judicial Circuit:
“After the trial’s completion, you are not
obligated to answer questions presented by
attorneys or the press. If unwanted questions
persist, contact the court immediately.”
Post-Trial Contact with Jurors
U.S. District Court, Northern District of
Alabama LR47.1 Juror Interrogation.
“Communications with a juror concerning a case
on which such person has served as a juror or
alternate juror shall not, without prior express
approval of a judge of this court, be initiated by
any attorney, party, or representative of either,
prior to the day following such person's release
from jury service for such term of court.”
Post-Trial Contact with Jurors
Get permission
Know the court’s specific rules
Respect juror’s wishes
Ethical Implications In The Use Of Preemptory Strikes:
The Challenge of Batson
• Race matters
• Gender matters
• Age matters
Quick Review of the Legal Framework
In 1986, the Supreme Court in Batson v. Kentucky overturned the principal holding in Swain that
"the Constitution does not require... an inquiry into the prosecutor's reasons for using his
preemptory challenges to strike blacks from the petit jury panel in the criminal trial of a black
defendant. The use of "preemptory challenges is subject to the commands of the Equal
Protection Clause.”
In 1991 in Powers v. Ohio, the Court held that a "criminal defendant may object to race-based
exclusions of jurors effected through preemptory challenges whether or not the defendant and the
excluded jurors share the same race.” Also in 1991, the Court extended its holding in Batson to
apply to civil cases in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
In 1992 in Georgia v. McCullom, the Court held that the prosecution, and not just the defense,
could challenge the racially discriminatory use of preemptory challenges. The Court held that
prosecutors and defendants alike could make Batson challenges.
In 1994 in J.E.B. v. Alabama ex rel. TB., the Court extended the allowable use of Batson
challenges to gender, holding that preemptory challenges exercised solely on the basis of gender,
much like challenges exercised solely on the basis of race, violated the Equal Protection Clause.
The Challenge Process
A Batson challenge involves a three-step process:
1) Establishing a prima facie case of racial or gender-based
Johnson v. California: the party making the Batson challenge
meets this first inquiry making out "a prima facie case showing
that the totality of the relevant facts gives rise to an inference of
discriminatory purpose. The party making a Batson challenge
meets their burden of establishing a prima facie case by simply
raising an "inference[] that discrimination may have occurred."
The Challenge Process
2) Providing a sufficiently race- or gender-neutral reason for each
questionable strike
Purkett v. Elem and Hernandez v. New York held that this
standard “does not demand an explanation that is persuasive, or
even plausible." The Court will find that the challenged party's
explanation is race neutral "[u]nless a discriminatory intent is
inherent in the prosecutor's explanation." Further, the Court
stated that a neutral explanation means "an explanation based
on something other than the race of the juror.”
The Challenge Process
3) Showing that the litigant used the strikes allotted in a
purposefully discriminatory manner – that the explanations
provided are pretextual or a sham
Most decisions to uphold or deny a Batson challenge are
determined in this third step: "[i]t is not until the third step that
the persuasiveness of the justification [for the peremptory
challenge becomes relevant." Johnson, 545 U.S. at 171
(quoting Purkett, 514 U.S. at 768).
The Court refined analysis under this aspect:
Miller-El v. Dretke: The prosecution struck ninety-one percent of the
eligible African American venire members.109 At the same time, the
prosecutor only struck twelve percent of non-black jurors.' 10 The
Court stated that "[h]appenstance is unlikely to produce this
disparity."' The Court also found that the explanations for the strikes
was dubious.
Snyder v. Louisiana: The Court held that in cases where a litigant
strikes a venire member by invoking his or her demeanor, "the trial
court must evaluate not only whether the [litigant's] demeanor belies
a discriminatory intent, but also whether the juror's demeanor can
credibly be said to have exhibited the basis for the strike attributed
to the juror by the prosecutor.”
The Remedy
The Batson Court addressed remedies for the constitutional
violation it identified in just one place in its opinion, in footnote
twenty-four. That footnote reads:
In light of the variety of jury selection practices followed in our state and
federal trial courts, we make no attempt to instruct these courts how best to
implement our holding today. For the same reason, we express no view on
whether it is more appropriate in a particular case … for the trial court to
discharge the venire and select a new jury from a panel not previously
associated with the case or to disallow the discriminatory challenges and
resume selection with the improperly challenged jurors reinstated on the
The footnote provides two possible solutions for a
1) Starting over with a new panel
2) Reseating the stricken juror
Subsequent cases indicate no preference for
one over the other.
There is variation from state to state.
Professional Conduct
- Exercising Preemptory Strikes
- Making a Batson Challenge
- Responding to a Batson Challenge
Is there inherent “tension” between zealous advocacy and
candor toward the tribunal and fairness to opposing party and
counsel in making and responding to Batson challenges?
Does Batson “enhance” the lawyer’s ethical obligations?
Possible Solutions
- Eliminate preemptory challenges?
- Expand challenges for cause?
- Add a professional rule of conduct?
It has been suggested that the Rules of Professional Conduct include the following as a means to
address the ethical implications of Batson:
RULE 3.1.5 Conduct During Jury Selection
A lawyer shall not discriminate on the basis of race, sex, religion, or national origin against a
member of the venire during jury selection.
COMMENT: Discrimination in the jury selection process has no place in our judicial process. The
discriminatory use of peremptory challenges not only harms litigants and the excluded juror but
undermines public confidence in our judicial system. Thus, a lawyer exercising preemptory
challenges in a discriminatory manner suggests an inability to fulfill the lawyer's professional role
as a public citizen concerned with the fair administration of justice.
Andres G. Gordon, Beyond Batson v. Kentucky: A Proposed Ethical Rule Prohibiting Racial
Discrimination in Jury Selection, 62 Fordham L. Rev. 685, 713 (1993).
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