When It Absolutely, Positively has to be . . . NOW?!!

Researching Potential Jurors During Voir Dire

In many, if not most, jurisdictions, the list of potential jurors is made available to the parties at some point before the day jury selection begins. As a trial consultant, I am often called upon to conduct research on potential jurors before trial. This research consists of general Internet searches and utilizing sources like social media (e.g., Facebook, LinkedIn, Twitter, and Instagram), news media, publicly available databases (e.g., political contributions, parties in civil lawsuits, housing values, and other public records, etc.), and any custom databases developed specifically for the litigation.  Discussions of these activities can be found in chapter 8, “Jurors and the Internet,” of my book Mastering Voir Dire and Jury Selection.

However, what happens when you don’t get the jury list until the day of trial? Do you give up using information outside of what you can gather through voir dire?  Obviously, the information uncovered during voir dire questioning is of primary importance.  But outside information can be extremely valuable also.  To further complicate the picture, let’s add an information collection target of two hours from the start of voir dire for a venire of 31 potential jurors.  Well, a colleague and I recently faced this situation. What we did may get you thinking creatively also.

Two hours, 31 potential jurors, . . . Go!

To accomplish this difficult task, we set up two general teams.  Team One would be onsite in the courthouse.  This team was responsible for inputting the jurors’ names and other information from the jury list into a document program (e.g., Google Docs) that allowed for the sharing of the document among many users.  In essence, this document gave us the ability to simultaneously add/share information from all team members in real time.  The document was available to the trial team during voir dire and jury selection so that they could view the evolving document from their laptops in court. The consultant head of Team One would interface the information with information gathered during voir dire.

Team Two—more than 100 miles away—led by another trial consultant, utilized researchers assigned to gather/search through (a) Google; (b) social media; (b) LinkedIn and company websites; (c) public records; (d) political party registration; (e) political contributions; (f) housing data; and (g) custom databases developed for the litigation.  As information was uncovered, the researchers added it to the document, with the results instantly becoming visible to all members of the research and trial teams. 

We took several steps to maximize the efficiency of our efforts at trial.  First, all technology and documents were tested (and often retested) before trial. Second, researchers went through dry runs of the “game day” experience to uncover flaws in the methodology and to develop improvements in our approaches (e.g., trying different search strategies).  Third, custom databases were developed to reduce, where possible, online searches of certain types of information.  While business internet access is generally reliable, internet traffic can overload websites, websites can be taken offline for upgrades and fixes, and internet service can be compromised without advance notice.  Finally, given that the list of jurors was in the order of their appearance for questioning, we developed a search strategy that allowed for completion of the data gathering for the initial jurors first, thus always staying ahead of the voir dire questioning process.

Overall, our experience was a positive one.  We were able to provide the information gathered within the target window. For example, 65% of potential jurors had an identifiable presence on Facebook, LinkedIn and/or Twitter with a number of jurors registering likes to significant political and/or social figures or organizations.  In addition, several jurors had contributed thousands of dollars to Democratic or Republican candidates, with several more jurors making smaller contributions. Most importantly, all the information was gathered and distributed before voir dire was concluded and strikes were exercised. 

Final Thoughts

There were several major takeaways from this experience.  First, such an undertaking can be accomplished within a limited time window.  Second, this approach would be highly desirable even when time constraints were not so draconian.  Third, having a substantial research team offsite—with onsite interface—can minimize the team footprint at trial while still maximizing capabilities under time-tight—and not so tight—trial conditions. And, of course, ideas for future developments (and posts) always arise from such (ad)ventures.  Try it sometime, and you will see what I mean.

For more information on voir dire and jury selection, see Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury, Fourth Edition (2018). Also, check out my companion book on supplemental juror questionnaires, Mastering Voir Dire and Jury Selection: Supplemental Juror Questionnaires (2018).

Recent media comments

Tom Hals (Wilmington) Analysis: Chauvin jurors facing 'through the roof’ stress as deliberations begin, Reuters (April 19, 2021)

Tom Hals (Wilmington) Analysis: Should Derek Chauvin testify in his own defense in Floyd murder trial?, Reuters (April 14, 2021)

Tom Hals (Wilmington) Analysis: Police and bystander accounts bolster Chauvin prosecution, Reuters (April 12, 2021)

Check out Dr. Frederick’s comments on mask and social distancing effects in the Derek Chauvin trial:

ABC News’ Kenneth Moton details what safety protocols will be in place during the first major in-person U.S. criminal trial of the pandemic. https://abcnews.go.com/US/video/covid-19-protocols-set-derek-chauvin-trial-76716395 Video: COVID-19 protocols set for Derek Chauvin trial (March 26,2021)

Available podcasts

The November 6, 2019 podcast from the ABA Journal’s Modern Law Library series features a discussion of voir dire and jury selection with Dr. Frederick in which he addresses tips for group voir dire, nonverbal communication in jury selection, and jurors and the internet, among other topics. Check out this 40-minute podcast on the ABA Journal’s website: http://www.abajournal.com/books/article/MLL-podcast-episode-110.

On January 25, 2019, Dr. Frederick presented a CLE program entitled “Mastering Voir Dire and Jury Selection” at the ABA Midyear Meeting at Caesar’s Palace in Las Vegas. Legal Talk Network conducted a short, 10-minute interview in conjunction with this program. You can listen to this podcast at: https://legaltalknetwork.com/podcasts/special-reports/2019/01/aba-midyear-meeting-2019-mastering-voir-dire-and-jury-selection/.

Dr. Frederick presented a 60-minute program based on his book, Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury, for the ABA Solo Small Firm and General Practice Division’s November 21, 2018 session of Hot Off the Press telephone conference/podcast. Check it out at the Hot Off the Press podcast library at: Mastering Voir Dire and Jury Selection (americanbar.org)