by Daniel J. Solove
For trial attorneys, a key component to winning is carefully selecting people for the jury and tailoring arguments to best influence, nudge, or perhaps even manipulate jurors into reaching a particular verdict. As a result, there is a hunger to learn about the private lives of jurors, and serving on a jury can entail a huge loss of privacy.
The Increasing Scrutiny of Jurors
During the jury selection process, lawyers can make unlimited challenges to potential jurors for cause (such as bias). If the judge agrees, the person will be excluded from the jury. Lawyers also have a number of peremptory challenges (often up to 10) where they can exclude a potential juror without any reason. Lawyers use their peremptory challenges to exclude jurors whom they think might not give them the verdict they want.
Because lawyers have some control over the jurors selected, the more they know about a potential juror, the better they think they can decide whether or not they want that person to serve on the jury. Lawyers are often able to get a lot of information about jurors with a questionnaire jurors must fill out at the beginning of the selection process. (See here for an example of one of these questionnaires). Sometimes lawyers are able to suggest questions to be included on the questionnaire. Lawyers representing wealthy clients often hire juror consultants who meticulously study the backgrounds of jurors and help shape every detail of the presentation of the case to resonate with particular jurors. Sometimes, lawyers hire private investigators to probe into the lives of jurors.
LinkedIn and Facebook: The New Frontier for Investigating Jurors
Now, according to recent news, the American Bar Association (ABA) declares that it is ethical to examine anything that a juror has said publicly on a social media site. This can be done not just to choose a jury but also at anytime during the trial. The article notes: “One company has gone so far as to develop a software product that promises to create a juror profile through social media posts and monitor jurors during the trial.”
According to the article, one of the more difficult issues for the ABA ethics committee involved sites like LinkedIn where people can see when their profiles have been examined and by whom. “Ultimately, the ABA committee decided a LinkedIn search was ethically sound, which runs counter to an opinion issued by the New York City Bar Association in 2010 that said any notice sent to a potential juror about a search amounts to an unauthorized communication.”
It strikes me as odd that the more difficult issue here involved situations where jurors might be informed that they are being snooped upon. Generally, one of the privacy principles with the most widespread consensus is the right of people to be informed that others are gathering their personal information or conducting a background check about them. Indeed, the federal Fair Credit Reporting Act requires employers to inform people if they are going to use a credit reporting agency to conduct a background check on them.
But jury service, I guess, isn’t akin to employment. It is more like involuntary servitude, where people are forced to resolve someone else’s legal dispute against their will and without adequate pay for their time — not even minimum wage. Nevertheless, jurors are in a sense being “hired” during the process of jury selection, albeit for a job that pays less than working at a factory in a third world country.
Jurors are subjected to extensive prying into their background and continued monitoring of their activities. Some employers do this level of background checking and probing, but there has been a lot of criticism and concern over this practice. I haven’t seen much attention given to how much privacy people must sacrifice as jurors, but we should pay more attention to the issue, as it is quite troubling. Jurors lack the basic privacy protections that people have in other contexts.
Of course, lawyers owe a duty to their clients to make sure that the decisionmakers in their case are not biased. They owe a duty to their clients to select the best jury. So it is hard to blame the lawyers for doing this. Sometimes jurors are improperly writing about the cases they are deciding. Or they express bias online that they do not disclose during the selection process. Scrutinizing their social media activity can certainly have some benefits.
But the result of the system is that jurors’ private lives are often involuntarily scrutinized, and this is a cost that the system often ignores. Jurors lack some of the most basic privacy rights, such as a right to be notified about what information is being gathered about them and who is gathering it. They are not adequately informed about how the data is being stored, secured, and so on.
Disclosing Private Juror Information to the Public
Beyond the probing into their private lives, juror privacy can be violated when details of their private lives are disclosed to the public. Juror questionnaires can be accessed by the public in some circumstances.
These questionnaires can ask for very sensitive information — details about a person’s family, reading habits, groups that a person belongs to, beliefs, prior instances of being a crime victim, and sometimes information about health and being a victim of sexual assault.
Jurors are often promised that their answers to the questionnaires will be kept confidential (such as this template for a questionnaire), but this promise isn’t really true. A number of courts have held that the First Amendment provides for a public right to access jury trials and that this right includes information obtained during the juror selection process.
For example, in In Re Access to Juror Questionnaires; The Washington Post, (D.C. Court of Appeals, 2012), the Washington Post sought juror questionnaires in the murder trial of Ingmar Guandique, accused of murdering Chandra Levy in 2001. The murder received extensive media coverage because Levy was having an affair with a Congressman, Gary Condit. The jury was promised that their answers to the questionnaire would be confidential, but later on, the court of appeals held that the questionnaires had to be disclosed to the public except for any questions that the trial judge believed to involve “deeply personal matters.” Under these circumstances, jurors would be given “an opportunity to raise any concerns” but ultimately, the decision would rest with the judge.
So as a juror, your privacy rests with the judge’s discretion — a thought that would not give me much assurance. I’ve read countless judicial opinions about privacy, and judges view privacy quite differently, with many judges having a rather narrow and limited view of what is private because they are not well-versed in the implications of the uses of personal data.
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of training on privacy and security topics. This post was originally posted on his blog at LinkedIn, where Solove is an “LinkedIn Influencer.” His blog has more than 600,000 followers.
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