Federal Jury Selection: No Google for You!

 Posted on September 19, 2011 in Uncategorized

In their relentless war on meaningful jury selection, formerly prosecuted through judge-conducted voir dire, the Department of Justice and the Federal Judiciary together have come up with a new weapon:

Government Motion to Prevent Defense Googling Jurors

I don't see in ECF that the Judge, Richard D. Bennett of the District of Maryland, has acted on the prosecutors' motion to keep the defense from googling potential jurors before trial, but the Baltimore Sun says that the questionnaires were redacted.

The prosecutors' argument, which Judge Bennett apparently bought, is this:

If the parties were permitted to conduct additional research on the prospective jurors by using social media or any other outside sources prior to the in-court voir dire, the Court's supervisory control over the jury selection process would, as a practical matter, be obliterated.

I think that the federal prosecutors and Judge Bennett are mistaking the effect of typical federal voir dire practices-forcing the parties to make decisions based on limited information about the potential jurors-with their purpose. Federal judges don't set out deliberately to ensure that the parties have as little useful information as possible; they set out, rather, to quickly qualify as many jurors as possible. This is the purpose of federal-style jury selection. That lawyers wind up with little useful information is incidental.

Less information about potential jurors is never better for a party than more. Anyone with an interest in the outcome of the litigation wants as much information as possible about the people who will be deciding the case. We can easily see why a federal judge, interested in seating a jury quickly and without reversible error (suppose that after selecting a jury the defense discovers through google that one of the seated jurors concealed something important from the court in jury selection: reversible error?), would agree to limit the parties' information about jurors, but why a lawyer would choose to have less information, rather than more, about her potential jurors is baffling.

One reason a lawyer might make such a choice is that she knows that more information will give her adversary an advantage (which is why federal prosecutors join the judiciary in their war on meaningful voir dire: the defense bar is better at it than they are). Perhaps the prosecutors in the Baltimore case don't want the defense to google its potential jurors because they wouldn't know what to make of a juror's social-media profile. Or maybe they don't have access to Facebook at work. Whatever the reason for their request, Judge Mark W. Bennett would, I suspect, never have granted it.

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