Research proposal juror opinions

Testing the Effects of Selected Jury Trial Innovations on Juror

[69] an argument could be made that the juror’s actions were in contempt of court and thus required the attorneys to report it.[19] and jurors in the digital age are increasingly investigated throughout a trial, not just prior to jury selection. respect to online juror investigation, worries over privacy may be lessened somewhat if jurors are told ahead of time that their backgrounds will be researched and why the search is being done.[27] thus, in a way, online research provides an alternative route or “end run” by which attorneys learn additional information about jurors. it is important that the parties are allowed sufficient time to review the jurors’ responses to the questionnaires.”[3] while this may somewhat overstate the importance of investigating jurors online, it nonetheless demonstrates just how routine the practice has become. when the jury venire contains large numbers of potential jurors, or when there are a large number of questions contained in the supplemental juror questionnaire, additional time will be necessary. improving peremptory strikes, online investigations also allow verification of juror answers, which in turn facilitates greater truth-telling during voir dire. however, these latter juror questionnaires 229 questionnaires are often general in nature and not designed to meet the needs of a specific case. time available for attorneys to examine jurors’ answers varies from a few hours to several days to several weeks. a juror’s digital trail—or internet footprint—affords attorneys a virtual treasure trove of information. 2010) (granting a motion for a new trial on grounds of juror misconduct when a juror was dishonest about previously being denied employment with the defendant company, resulting in potential bias). this displeasure would most likely increase if jurors knew that the information uncovered was used solely for the benefit of one attorney. for example, in response to questioning regarding pretrial publicity, a potential juror may answer, “i read that the defendant confessed to the crime during police questioning. allowing attorneys to gather more information about potential jurors, attorneys are less likely to strike a juror solely because of gender or race, which is unconstitutional,[35] or because of physical size, which is illogical..2d 134, 138–39 (iowa 1987) (limiting access to juror information by county attorneys, and requiring county attorneys to disclose to the defense any juror information obtained); commonwealth v.[54] as discussed above, when attorneys investigate jurors, they are not doing it necessarily to seat an impartial jury or ensure a fair trial. thus, those concerned with juror privacy may be better served by focusing their attention on the individuals who place the information online, rather than those who search for it. past juror questionnaires have revealed answers and comments that are not likely to have surfaced during oral voir dire.’s case and the facebook juror scenario illustrate the disparate results that may occur under the current model rules. this procedure saved a considerable amount of time by eliminating many potential jurors prior to voir dire examination. specifically, this article proposes that the advisory committee on criminal rules of the judicial conference of the united states make certain juror infor­mation uncovered by attorneys in criminal trials subject to the rules of discovery.(i) (2011) (“a lawyer who, prior to conclusion of the proceeding, comes to know of improper conduct by or toward a juror or a member of the jury pool shall report the improper conduct to the tribunal, even if so doing requires the disclosure of information otherwise protected by rpc 1. off-site methodone method for obtaining information requested on supplemental juror questionnaires is to mail copies of the questionnaires to potential jurors before the trial., the defense counsel’s son discovered the facebook post while running internet searches on the jurors, and the court promptly removed the juror from the case., july 31, 2001, at b1 (describing the growing phenomenon of jurors representing themselves as fair but hiding a bias or motivation). respect to online juror investigation, worries over privacy may be lessened somewhat if jurors are told ahead of time that their backgrounds will be researched and why the search is being done. in light of the growing number of instances of juror misconduct associated with improper communications and research, this benefit should not be underestimated. at present, the legal system lacks adequate safeguards to ensure that all disqualifying juror information is brought forward. ghent, annotation, right of defense in criminal prosecution to disclosure of prosecution information regarding prospective jurors, 86 a. of online juror investigation claim that the practice improves the legal system as a whole. it should be noted that some courts routinely send out supplemental juror questionnaires on their own initiative. answers to the above questions should serve as a sound basis for securing the best possible logistics for the use of supplemental juror questionnaires. most assume all disqualifying juror information is turned over to the court or released to the public. the use of written questionnaires provides jurors with a greater sense of privacy and comfort than does answering questions in open court, in front of their fellow jurors and, often, the press. the same information given on a supplemental juror questionnaire would infect no one and would alert the court to the possible need for private questioning of that individual. thaddeus hoffmeister, judges posner and easterbrook disagree over anonymous jury issue,Metro/2008/ oct/26/na-potential-jurors-are-an-open-book-online-ar-106400/.

The Educated Jury: A Proposal for Complex Litigation

more jurors drop out before the jury is formally seated and thus ‘fewer and fewer people are coming up with a criminal record in contradiction of their jury questionnaire. for one thing, the information can be used to get a case overturned on appeal if it turns out a juror lied on a questionnaire. at present, the legal system lacks adequate safeguards to ensure that all disqualifying juror information is brought forward.[6] this article examines the positive and negative aspects of legal professionals investigating jurors online and offers a proposal that, if implemented, should dull some of the criticism associated with the practice.[50] in the past, numerous jurors have complained that voir dire questions and court questionnaires delved too far into personal matters., attitudes, and the death penalty (research proposal)11 pagesemotions, attitudes, and the death penalty (research proposal)uploaded byanthony hudson  connect to downloadget docxemotions, attitudes, and the death penalty (research proposal)downloademotions, attitudes, and the death penalty (research proposal)uploaded byanthony hudsonloading previewsorry, preview is currently unavailable.[73] because attorneys research jurors throughout a trial, the rule would be open-ended and not limited to voir dire. for example, on the questionnaires, jurors may admit to having been arrested in the past or having been a victim of sexual assault. mick hinton, house votes to shut lists of jurors, daily oklahoman, apr. the judge and the lawyers do not need to pursue with each individual juror or panel of jurors the questions that appear on the questionnaire. subsequent individual questioning of potentially tainted jurors out of the presence of the other potential jurors may be in order.[9] because criminal sta­tutes and ethi­cal rules prohibit direct contact with jurors, inves­tigators prac­ticed their craft by talking with the jurors’ neighbors or conducting drive-bys of the jurors’ residence. the legal community has long struggled with where to draw the line between empaneling and maintaining an impartial jury and safeguarding the privacy of jurors.[43] once jurors learn that their public online activities are subject to monitoring, they will be less inclined to violate court rules for fear of being caught. furthermore, these rules, for the most part, are unclear as to when an attorney must report a juror to the court. but, as demonstrated by the attorneys defending josé padilla—the would-be “dirty bomber”—it is possible, even with a small window of time, to uncover sufficient information to have a potential juror dismissed. a juror’s digital trail—or internet footprint—affords attorneys a virtual treasure trove of information. for an excellent discussion of juror questionnaires and sample motions in support of their use, see national jury project, supra note 1.[7] historically, criminal defense attorneys gathered information about potential jurors through private detectives, while prosecutors relied on law enforcement. this point of view incorrectly assumes all disqua­lifying information about jurors will be brought to light. by including questions regarding pretrial publicity in the supplemental juror questionnaire, the parties and the court are alerted to possible problems.. appendix i contains the motion for improvements in voir dire procedures, including the use of a juror questionnaire, submitted by the defense in a possession of child pornography case. since the early 1970s, supplemental juror questionnaires have been used sporadically but with increasing frequency in both federal and state courts. in some jurisdictions, jurors who fail to return their questionnaires by a specific date are contacted by the court or jury administrator in an effort to secure the completed questionnaires.[26] by going online, however, the attorney may discover which political candidates the juror donated to in the most recent election and whether the juror belongs to any particular political organizations. see karen monsen, privacy for prospective jurors at what price? 1966) (allowing the defense access to juror information obtained by the government); jeffrey f.[22] besides the padilla case,[23] numerous examples exist of attorneys finding sufficient information to have a juror chal­lenged for cause both in the civil and criminal context.” the disclosure of such a fact (if this confession was inadmissible) could infect and prejudice other jurors who heard this remark. addition, this rule helps level the playing field, as some attorneys are still in the dark about investigating jurors and others lack the resources to perform such research. due to the nature and length of this article, the topic of juror privacy, which is worthy of further discussion, is only briefly touched upon. some waited until the eve or day of trial to release the names of prospective jurors,[11] while others stopped publicly publishing jury lists. thus, those concerned with juror privacy may be better served by focusing their attention on the individuals who place the information online, rather than those who search for it. some trial consultants have gone so far as to offer “personality profiling” of jurors based on internet research.[22] besides the padilla case,[23] numerous examples exist of attorneys finding sufficient information to have a juror chal­lenged for cause both in the civil and criminal context. enacted, this rule might lesson society’s concern about attorneys inves­tigating jurors because it demonstrates that the practice is not solely for the benefit of one side, but instead to ensure a fair and unbiased jury., the defense counsel’s son discovered the facebook post while running internet searches on the jurors, and the court promptly removed the juror from the case.

Applying Rules of Discovery to Information Uncovered About Jurors

[54] as discussed above, when attorneys investigate jurors, they are not doing it necessarily to seat an impartial jury or ensure a fair trial. rather, this rule would only require the turning over of information that may disqualify a juror or would serve as a challenge for cause, and not information that would merely lead opposing counsel to exercise a peremptory challenge. mick hinton, house votes to shut lists of jurors, daily oklahoman, apr.[62] one attorney discovered that a prospective juror had lied on her juror questionnaire about her involvement with the criminal justice system. prescreening capability of supplemental juror questionnaires was used by the trial judge during jury selection in united states v. for example, only 38 percent of the first forty potential jurors who completed the questionnaire passed these screening questions. supplemental juror questionnaires that range from two to twenty pages in length can be accommodated by both the off-site and on-site methods fairly easily.[4] aside from increased acceptance among practitioners, courts have both approved of and encouraged online investigation of jurors. supplemental juror questionnaires can be used as a tool to eliminate potential jurors from further consideration in the jury selection process. after the first day of trial, the juror wrote the following on her facebook page: “[a]ctually excited for jury duty tomorrow. for example, one juror reported having bumper stickers of “straight and republican” and “nra” on her vehicle, with an attempt being made to cross out reference to the first bumper sticker. mastering voir dire, chapter 7objectivesto explore the basics of juror questionnaires and their construction.[29] for example, if an attorney discovers through his or her online investigation that one partic­ular juror follows sports closely, the attorney may use athletic references or metaphors in the courtroom in an attempt to better connect with that juror.[58] those states requiring disclosure of juror information place the burden on the prosecution to disclose it and generally require disclosure only after a request from defense counsel.[42] tradi­tionally, attorneys and judges had little outside information to rely on, save for maybe a criminal records check, when determining the honesty or suitabil­ity of a juror. when jurors answer questions on these questionnaires, lawyers cannot observe any associated verbal and nonverbal behavior. a final benefit of supplemental juror questionnaires is the potential for conducting voir dire more quickly. in the past, when investigators canvassed the neighborhoods of prospective jurors, today’s investigations occur primarily online, as most jurors have at least one online reference, either placed there personally or by someone else.[8] these investigators, both private and public, were employed to learn basic background infor­mation on jurors such as age, religion, neighborhood, type of residence, employer, socioeconomic and ma­rital status, and political affiliation. tool for lessening the problems caused by restrictive voir dire conditions is the supplemental juror questionnaire. 389, 396–98 (1994) (discussing the potential problems caused by a self-interested juror working to profit from jury duty in high-profile cases). in the trials of timothy mcveigh and terry nichols, potential jurors reported to a rented auditorium where they completed the questionnaires and were excused for seven to ten days while the 480 to 500 questionnaires were reproduced and processed. see nowak, supra note 49, at 1244 (“statutes or court rules should be adopted at the state and federal level requiring any party to a litigation to provide to the opposing party all information in the party’s possession regarding cyber activities of potential jurors or witnesses. the legal community has long struggled with where to draw the line between empaneling and maintaining an impartial jury and safeguarding the privacy of jurors. allowing such infor­mation to be obtained, but making it subject to the rules of discovery, will correct this misconception and should help to curb much of the criticism aimed at the inves­tigation of jurors. asking the jurors to return the completed questionnaires within a short specified time after receipt (e.[55] rather, attorneys want to remove an unfavorable juror, learn the interests and viewpoints of sitting jurors, or uncover grounds for an appeal.[65] thus, the ulterior motives of the defense team, such as the desire to remove a guilty vote, were irrelevant because the defense was ethically required to report the juror’s misconduct.[ ] 6 weeks or more[ ] 5 weeks[ ] 4 weeks[ ] 3 weeks or lesshow much time will jurors have to complete and return the questionnaire? like attorneys, the media have been quite adept at discovering juror misconduct., jury consultant amy singer was doing internet research on potential jurors for a products liability case involving a maintenance worker who was severely injured after being forced to get inside a machine to clean it. do you decide which type of supplemental juror quesitonnaire to use? jurors’ answers to the questions posed in the questionnaire serve as a starting point for the examination of jurors, either by the judge, the lawyers, or both.[40] according to professor bennett gershman, rogue or stealth jurors are those “who seek to inject themselves into the [trial] process for self-serving reasons. is important to secure the completed questionnaires from as many potential jurors as possible in order to maximize the benefits obtained from this approach.[4] aside from increased acceptance among practitioners, courts have both approved of and encouraged online investigation of jurors. this argument, however, is very tenuous and requires several assumptions: first, that the juror was indeed told not to post her thoughts about the case online;[70] second, that the instructions were clearly and accurately given to the juror; and third, that the juror understood the instructions and purposefully violated the court’s order. 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Emotions, Attitudes, and the Death Penalty (Research Proposal

supplemental juror questionnaires can reduce the need for repetitive questioning of jurors. three questions (questions 30, 31, and 32, shown below) were developed to elicit information concerning the possible exposure of jurors to the immunized testimony:30.’s case and the facebook juror scenario illustrate the disparate results that may occur under the current model rules.[55] rather, attorneys want to remove an unfavorable juror, learn the interests and viewpoints of sitting jurors, or uncover grounds for an appeal.[19] and jurors in the digital age are increasingly investigated throughout a trial, not just prior to jury selection. if the motion is not simply a formality, it will be important to set out the following: (a) why a supplemental juror questionnaire is necessary in the case; (b) the possible benefits secured through the use of a supplemental juror questionnaire; (c) a proposed procedure for using supplemental juror questionnaires, if one is not in place; and (d) recommended changes in the present procedure, if necessary. see also a discussion of the desirability of using juror questionnaires in timothy r. see nowak, supra note 49, at 1244 (“statutes or court rules should be adopted at the state and federal level requiring any party to a litigation to provide to the opposing party all information in the party’s possession regarding cyber activities of potential jurors or witnesses. willing to serve [on a jury] if they know that inquiry into their essentially private concerns will be pressed”); david weinstein, protecting a juror’s right to privacy: constitutional constraints and policy options, 70 temp. do you believe that you could be a fair and impartial juror in the trial of a member of that terrorist organization? jurors complete the questionnaires upon their arrival for jury service, either in the jury lounge or some other appropriate setting. at least one legal practitioner has noted that “[b]ecause judges are emphasizing [juror background] checks, . for other discussions of juror questionnaires, see the jury 1987: techniques for the trial lawyer (pli litig. the court or jury administrator sends the questionnaire to potential jurors with a cover letter explaining how jurors are to complete and return the questionnaires and when the questionnaires must be returned.[73] because attorneys research jurors throughout a trial, the rule would be open-ended and not limited to voir dire. allowing attorneys to gather more information about potential jurors, attorneys are less likely to strike a juror solely because of gender or race, which is unconstitutional,[35] or because of physical size, which is illogical. one district attorney claims that prospective jurors generally do not mind background checks on social networking sites if he informs them that the information will only be used to determine their disposition towards certain issues, will help streamline the judicial process, and will be disposed of after trial. when jurors give these answers, the court simply removes them from further consideration. addition, this rule helps level the playing field, as some attorneys are still in the dark about investigating jurors and others lack the resources to perform such research.[ ] [ ] is there an appropriate location/setting for all potential jurors to complete the questionnaire?[28] depending on the infor­mation discovered, an attorney might format an opening statement or craft specific witness questions to fit the interests of a particular juror. 389, 396–98 (1994) (discussing the potential problems caused by a self-interested juror working to profit from jury duty in high-profile cases). improving peremptory strikes, online investigations also allow verification of juror answers, which in turn facilitates greater truth-telling during voir dire. for example, attorneys are allowed a certain number of peremptory challenges to remove potential jurors during voir dire. allowing such infor­mation to be obtained, but making it subject to the rules of discovery, will correct this misconception and should help to curb much of the criticism aimed at the inves­tigation of jurors., attitudes, and the death penalty (research proposal)11 pagesemotions, attitudes, and the death penalty (research proposal)uploaded byanthony hudson  connect to downloadget docxemotions, attitudes, and the death penalty (research proposal)downloademotions, attitudes, and the death penalty (research proposal)uploaded byanthony hudsonloading previewsorry, preview is currently unavailable.[62] one attorney discovered that a prospective juror had lied on her juror questionnaire about her involvement with the criminal justice system. propo­nents of juror research point to its tremendous upside, claiming that with the infor­mation uncovered, courts increase the likelihood of empaneling unbiased and honest jurors, and decrease the possibility of juror misconduct—or at least keep it from going undetected. however, many jurors do not provide the same information if asked on voir dire, thereby precluding the follow-up of potentially critical information.. it is important to distinguish between qualification questionnaires, which are sent out by the court to establish the jury pool, and “nonqualification” or supplemental juror questionnaires, which are designed to provide additional information to that provided on the qualification questionnaire. whether the supplemental juror questionnaire originates from the court or from the parties in a given case, the comments apply to both. when using the off-site method:how far in advance of the trial/jury selection will the questionnaires be mailed to potential jurors?[8] these investigators, both private and public, were employed to learn basic background infor­mation on jurors such as age, religion, neighborhood, type of residence, employer, socioeconomic and ma­rital status, and political affiliation. unlike challenges for cause, peremptories can be used to strike a juror even if that juror can be impartial and fair to both sides. additionally, some consultants and lawyers are beginning to use internet information they’ve obtained about jurors to influence them during the trial, particularly during closing arguments. are a number of potential benefits to using supplemental juror questionnaires, including (a) increased juror disclosure; (b) development of more effective follow-up questions; (c) ability to prescreen jurors; (d) minimizing infection of the panel; (d) availability of greater total information; and (f) promotion of a faster jury selection. jurors, like most people, do not relish the idea of attorneys researching their backgrounds. 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Affirmative Jury Selection: A Proposal to Advance Both the

comment 12 to padilla’s case, it appears that the defense team, upon learning of the juror’s dishonest statement, had an ethical duty to make the court aware of the information because it was fraudulent—the juror had lied on a questionnaire., attorneys today no longer need juror names weeks or days in advance of trial because online investigation primarily takes place in the courtroom during voir dire. the prosecutor in dolphy stated that he struck overweight potential jurors because, “based on [his] reading and past experience[,] . a number of jurisdictions have recommended the use of juror questionnaires as part of recent efforts to improve jury trials.[ ] [ ] will there be sufficient time for review of the completed questionnaire prior to questioning of the potential jurors? in fact, the vast majority of the information an attorney might learn about a juror, such as the juror’s profile, would not be discoverable. these methods differ based on whether jurors complete the questionnaires off-site before trial (off-site method) or at trial (on-site method).[6] this article examines the positive and negative aspects of legal professionals investigating jurors online and offers a proposal that, if implemented, should dull some of the criticism associated with the practice. rather, attorneys use these opportunities to gather information on jurors for various purposes and for use at different stages of the trial. for the average-length questionnaire administered to fifteen or more potential jurors, allowing only a few hours of review time will be inadequate for effective consideration of the jurors’ answers. specifically, this article proposes that the advisory committee on criminal rules of the judicial conference of the united states make certain juror infor­mation uncovered by attorneys in criminal trials subject to the rules of discovery. a problem that is rarely addressed is the issue of jurors receiving assistance (or interference) in completing their questionnaires. honesty during voir dire also reduces the risk of empaneling a rogue juror.[ ] [ ] is there a procedure in place for the follow-up of potential jurors who fail to return questionnaires?[26] by going online, however, the attorney may discover which political candidates the juror donated to in the most recent election and whether the juror belongs to any particular political organizations.[74] arguably, citizens will be less accepting of online investigations of jurors if done solely for the advantage of one attorney over the other and without any requirement to reveal such information.[9] because criminal sta­tutes and ethi­cal rules prohibit direct contact with jurors, inves­tigators prac­ticed their craft by talking with the jurors’ neighbors or conducting drive-bys of the jurors’ residence.[27] thus, in a way, online research provides an alternative route or “end run” by which attorneys learn additional information about jurors. 1966) (allowing the defense access to juror information obtained by the government); jeffrey f. of greater concern is the probable increase in non-return rates by jurors who are asked to complete a long questionnaire. some trial consultants have gone so far as to offer “personality profiling” of jurors based on internet research. see jerry markon, jurors with hidden agendas—lawyers see rise in people who don’t disclose bias, then seek to sway peers, wall st. attorney’s ability and desire to go online to learn a juror’s political views also demonstrates that the investigation of jurors, like voir dire itself, is not limited necessarily to ferreting out dishonesty or finding impartial jurors.[30] for example, an attorney might search a juror’s blog or social networking site in an effort to discover an inappropriate remark or comment made to or by the juror during trial. [ ] [ ] is a motion required when seeking to use a supplemental juror questionnaire? other attorneys, particularly those who at the end of the trial find themselves on the losing side, might research a juror online in an attempt to find some act of misconduct that could serve as grounds for appeal. in light of the growing number of instances of juror misconduct associated with improper communications and research, this benefit should not be underestimated.” these candid comments occur more frequently in juror questionnaires than during voir dire. 285, 286–88 (2002) (detailing the dilemma faced by jurors’ wish to protect their privacy, which must be balanced against society’s desire for this information “to ensure a fair trial for defendants”).[29] for example, if an attorney discovers through his or her online investigation that one partic­ular juror follows sports closely, the attorney may use athletic references or metaphors in the courtroom in an attempt to better connect with that juror. in the past, when investigators canvassed the neighborhoods of prospective jurors, today’s investigations occur primarily online, as most jurors have at least one online reference, either placed there personally or by someone else. unlike with the onsite method, a major concern with the off-site method is ensuring that all jurors complete the questionnaires and return them by the designated time. honesty during voir dire also reduces the risk of empaneling a rogue juror. certain instances, attorneys investigating jurors learn things that would rarely, if ever, come up or be discussed during voir dire.[80] to lessen the possible impact on this privilege, the new rule of discovery as written does not require the disclosure of all information about jurors. a major challenge faced during the jury selection process is to gather useful information about potential jurors so that lawyers may intelligently exercise peremptory challenges and uncover grounds for challenges for cause. often, in this latter type of jurisdiction, the hope is that jurors who fail to return their questionnaires will bring the completed questionnaires with them when they come to court. 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Juror Questionnaires | Solo, Small Firm and General Practice Division

but, as demonstrated by the attorneys defending josé padilla—the would-be “dirty bomber”—it is possible, even with a small window of time, to uncover sufficient information to have a potential juror dismissed. more and more personal information is placed online, attorneys are increasingly turning to the internet to investigate and research jurors. see nowak, supra note 49, at 1225 (“the attorney with information about cyber activities of potential jurors will be able to use jury challenges for cause, and use preemptive challenges, in a strategically wise manner. joshua okun, investigation of jurors by counsel: its impact on the decisional process, 56 geo. 2010) (granting a motion for a new trial on grounds of juror misconduct when a juror was dishonest about previously being denied employment with the defendant company, resulting in potential bias). singer instantly knew this juror would be sympathetic to her client and advised her client to keep him on the panel. in the terrorism trial of zacarias moussaoui, all jurors completed the questionnaire on the same day, using two courtrooms in the morning and afternoon. proposed rule might read as follows:Any attorney who discovers or learns of information before, during, or after trial that would disqualify a juror from serving, or serve as sufficient grounds for challenging the juror for cause, shall turn over such information to the opposing party. however, we will be focusing our attention on the supplemental juror questionnaires that are at least partly under the control of the parties. the problem, however, is that voir dire as conducted in federal courts and many state courts impedes the discovery of important information about jurors. as the practice of inves­tigat­ing jurors online continues to grow, it is highly likely that similar issues will arise in the future. additionally, some consultants and lawyers are beginning to use internet information they’ve obtained about jurors to influence them during the trial, particularly during closing arguments.[76] one of the reasons josé padilla’s legal team was able to go online and discover the untruthful juror during voir dire is that it had the staff to do it, which is not always the case in criminal trials. consequently, supplemental juror questionnaires should not be considered a substitute for in-court questioning and diligent in-court follow-up of important issues. jurors, like most people, do not relish the idea of attorneys researching their backgrounds. thaddeus hoffmeister, judges posner and easterbrook disagree over anonymous jury issue,Metro/2008/ oct/26/na-potential-jurors-are-an-open-book-online-ar-106400/. second scenario involves a juror who sat on a two-day criminal trial. similar situation could arise in products liability cases should a potential juror reveal that his or her employer stopped using the product at issue because it was “defective. just as voir dire is not necessarily conducted to seat an impartial juror, the same can be said for online research of jurors: “[v]oir dire examinations are theoretically designed to detect and eliminate bias, [but] they are almost universally employed for quite different objectives. today, the internet makes verification of juror responses much easier. at least one legal practitioner has noted that “[b]ecause judges are emphasizing [juror background] checks, . deciding which method to usethere are four major considerations in choosing either method for administering supplemental juror questionnaires or, in jurisdictions where procedures are already in place, seeking changes in the methods employed. comment 12, reads:Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communi­cat­ing with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so. just as voir dire is not necessarily conducted to seat an impartial juror, the same can be said for online research of jurors: “[v]oir dire examinations are theoretically designed to detect and eliminate bias, [but] they are almost universally employed for quite different objectives.[67] obviously, here, defense counsel had an interest in remov­ing this juror. the first is the case of josé padilla,[61] which presents a traditional example of juror dishonesty.[36] this idea may best be summed up by professor stephen saltzburg who has advocated for providing attorneys with more information about prospective jurors: “i think most lawyers resort to stereotypes not because they want to but because they have to. singer instantly knew this juror would be sympathetic to her client and advised her client to keep him on the panel.[13] this in turn made it extremely difficult to conduct any type of pre–voir dire inves­ti­ga­tion into the backgrounds of jurors. rather, this rule would only require the turning over of information that may disqualify a juror or would serve as a challenge for cause, and not information that would merely lead opposing counsel to exercise a peremptory challenge. comment 12 to padilla’s case, it appears that the defense team, upon learning of the juror’s dishonest statement, had an ethical duty to make the court aware of the information because it was fraudulent—the juror had lied on a questionnaire. second scenario involves a juror who sat on a two-day criminal trial. particularly in federal courts, voir dire is limited in (a) what questions can be asked; (b) who asks the questions; (c) how much time is allotted for the questioning process; and (d) the opportunity for individual questioning of jurors. as the practice of inves­tigat­ing jurors online continues to grow, it is highly likely that similar issues will arise in the future. of online juror investigation claim that the practice improves the legal system as a whole. unlike challenges for cause, peremptories can be used to strike a juror even if that juror can be impartial and fair to both sides. 1992) (finding a juror who, contrary to the court’s instructions, “view[ed] story pertaining to case in news media and express[ed] her opinion concerning case to another member of jury panel” to be in contempt and fining the juror 0). 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Public opinion and the jury: an international literature review

rule advocated by this article is to subject any juror information discovered by an attorney to the rules of discovery if such information would result in a juror being either challenged for cause or disqualified from serving. practice of obtaining information about jurors outside of the tradi­tional voir dire process is not a new concept. as a result, jurors are likely to be more candid in their answers to questions in supplemental juror questionnaires than to questions posed in open court, particularly when faced with group questioning. singer—who was working for the plaintiff’s attorney—hit pay dirt when she found out that one of the jurors divulged on his myspace page that he belonged to a support group for claustrophobics.. this cover letter was used for the juror questionnaire in united states v. depending on their scope, these questionnaires address the jurors’ background characteristics, experiences, activities, and opinions and evaluations.[33] this in turn has led to one of the major criticisms of peremptory challenges: attorneys exercise them based on outdated stereotypes and hunches premised on a juror’s physical appearance. or consider the potential juror who answered “yes,” she understood the defendants were innocent and “undecided” as to their guilt. singer—who was working for the plaintiff’s attorney—hit pay dirt when she found out that one of the jurors divulged on his myspace page that he belonged to a support group for claustrophobics.[15] however, many attorneys employ far more sophisticated procedures to include extracting information from social networking sites and databases[16] and monitoring jurors’ online activities., a big concern with online juror research is the encroachment on juror privacy. for example, judges generally prohibit attorneys from questioning a potential juror during voir dire about her political ideology or who she voted for in the last presidential election. even with more innocuous information—for example, jurors’ familiarity with products at issue in the litigation—the answers jurors give can serve as an important starting point for in-depth questioning. common argument against making juror information discoverable is that such information is protected by the attorney work-product privilege.[58] those states requiring disclosure of juror information place the burden on the prosecution to disclose it and generally require disclosure only after a request from defense counsel. juror questionnaires are designed to elicit a variety of information from jurors. maximizing the return rate for the questionnaires requires (a) specific instructions about when the completed questionnaires are due; (b) a self-addressed, postage-paid, return mailer; and (c) a follow-up strategy for dealing with jurors who fail to meet the deadline.” this type of statement made in open court could infect other jurors. for example, only a small number of states make information about jurors discoverable. jurors’ hobbies and spare time activities have included “cockfighting” and “smoking weed. the jurors were then contacted forty-eight hours prior to the day they were to arrive at court.[63] the attorney informed the court, and the prospective juror was subsequently removed from the jury pool entirely. on-site methodthe second method of obtaining information on supplemental juror questionnaires takes place when jurors report for trial. any interaction or assistance provided by outside individuals carries the potential for decreasing the honesty and candor of potential jurors’ answers. gershman, contaminating the verdict: the problem of juror misconduct, 50 s. when using the on-site method:[ ] [ ] will all potential jurors be completing the questionnaire at the same time?[63] the attorney informed the court, and the prospective juror was subsequently removed from the jury pool entirely. marder, the jury process 82–83 (2005) (“for example, lawyers have sometimes wanted to ask prospective jurors about their religion or sexual orientation during voir dire, but judges have usually denied such inquiries on the ground that it is an intrusion into the juror’s privacy and not necessary for the parties to know. the court may decide a priori that certain answers by jurors reflect bias, conflict of interest, taint, or hardship, which would disqualify them from jury service. whenever questioning of potential jurors occurs in the presence of other jurors, there is the potential for the answers given to infect or taint the remaining jurors present. questions that address the juror’s educational background, work history, occupation, prior victimization, and spouse’s occupation can be efficiently covered in the questionnaire, with the voir dire reserved for any necessary follow up. see karen monsen, privacy for prospective jurors at what price?[42] tradi­tionally, attorneys and judges had little outside information to rely on, save for maybe a criminal records check, when determining the honesty or suitabil­ity of a juror. see nowak, supra note 49, at 1225 (“the attorney with information about cyber activities of potential jurors will be able to use jury challenges for cause, and use preemptive challenges, in a strategically wise manner. attorney who discovers improper conduct by a juror in voir dire or during trial may not relay such information to the court, especially if the conduct is neither criminal nor fraudulent and the attorney thinks that keeping the particular juror will prove advantageous to her case. these jurors later returned in small batches, with the first batch starting ten days later for the beginning of voir dire. thus, time was not wasted examining potential jurors who eventually would have had to have been removed for cause.

Voir Dire Becomes Voir Google: Ethical Concerns of 21st Century

once jurors realize that many of their voir dire answers can be verified online, they will likely be more truthful or request dismissal from the case.[68] the juror’s act was neither fraudulent nor criminal, but it was definitely improper, and the court found it sufficient to remove her. other attorneys, particularly those who at the end of the trial find themselves on the losing side, might research a juror online in an attempt to find some act of misconduct that could serve as grounds for appeal. jurors return the completed questionnaires by mail to the court or, in some jurisdictions, to a printing company where the questionnaires are photocopied. this point of view incorrectly assumes all disqua­lifying information about jurors will be brought to light. see jerry markon, jurors with hidden agendas—lawyers see rise in people who don’t disclose bias, then seek to sway peers, wall st. propo­nents of juror research point to its tremendous upside, claiming that with the infor­mation uncovered, courts increase the likelihood of empaneling unbiased and honest jurors, and decrease the possibility of juror misconduct—or at least keep it from going undetected.[12] also, anonymous juries, in which juror names are sometimes even withheld from the attorneys trying the case, became more common.[28] depending on the infor­mation discovered, an attorney might format an opening statement or craft specific witness questions to fit the interests of a particular juror. the prosecutor in dolphy stated that he struck overweight potential jurors because, “based on [his] reading and past experience[,] .[36] this idea may best be summed up by professor stephen saltzburg who has advocated for providing attorneys with more information about prospective jurors: “i think most lawyers resort to stereotypes not because they want to but because they have to. concerns about juror privacy started to capture the attention of judges, academics, and the public as a whole, it became increasingly difficult to inves­tigate jurors in certain jurisdictions. if a follow-up procedure is not used, it will be necessary for the court to have the jurors who arrive at trial without having completed the questionnaire do so on-site. like attorneys, the media have been quite adept at discovering juror misconduct. for one thing, the information can be used to get a case overturned on appeal if it turns out a juror lied on a questionnaire. in this case, jurors who had been exposed to oliver north’s immunized testimony before congress could not serve. for example, in the exxon valdez civil case, jurors completed the questionnaires on a monday and returned two days later for voir dire questioning.., jurors are more likely to inadvertently skip questions on the back sides of pages; duplication problems can arise; and the information contained on double-sided questionnaires is more difficult for lawyers to manage during questioning. rather, attorneys use these opportunities to gather information on jurors for various purposes and for use at different stages of the trial.[80] to lessen the possible impact on this privilege, the new rule of discovery as written does not require the disclosure of all information about jurors. as long as the criteria are decided beforehand, supplemental juror questionnaires have significant potential for streamlining the jury selection process.[69] an argument could be made that the juror’s actions were in contempt of court and thus required the attorneys to report it. common argument against making juror information discoverable is that such information is protected by the attorney work-product privilege. for example, these questionnaires can explore the following areas: ■ background characteristics:occupation/employmenteducationmarital statusincome■ experiences:victimizationinvolvement in lawsuitsuse of firearmsuse of commercial productsexperience with patents or other intellectual propertyexposure to/awareness of pretrial publicity■ activities:hobbies and spare time activitiesorganizational membership■ opinions and evaluations:general views concerning the presumption of guilt/innocencetrust in law enforcementviews on causes of crimeviews on civil lawsuitsviews on providing monetary compensation for noneconomic damagesviews concerning punitive damagesfavorable/unfavorable impressions of a party or partiesbeliefs in the guilt of a criminal defendant or liability of a civil defendant supplemental juror questionnaires can vary considerably in the number of questions asked and the subsequent length of the questionnaire. comment 12, reads:Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communi­cat­ing with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so.[74] arguably, citizens will be less accepting of online investigations of jurors if done solely for the advantage of one attorney over the other and without any requirement to reveal such information..2d 134, 138–39 (iowa 1987) (limiting access to juror information by county attorneys, and requiring county attorneys to disclose to the defense any juror information obtained); commonwealth v. thus, this article recommends subjecting certain juror information to the rules of discovery, as discussed below. for example, judges generally prohibit attorneys from questioning a potential juror during voir dire about her political ideology or who she voted for in the last presidential election. certain instances, attorneys investigating jurors learn things that would rarely, if ever, come up or be discussed during voir dire., attorneys today no longer need juror names weeks or days in advance of trial because online investigation primarily takes place in the courtroom during voir dire.[13] this in turn made it extremely difficult to conduct any type of pre–voir dire inves­ti­ga­tion into the backgrounds of jurors.[ ] [ ] is there a satisfactory procedure in place for having potential jurors complete questionnaires when they report for trial/jury selection, if necessary? thus, this article recommends subjecting certain juror information to the rules of discovery, as discussed below.[67] obviously, here, defense counsel had an interest in remov­ing this juror. overall, a substantial number of jurors were eliminated through the court’s desk audit process.[76] one of the reasons josé padilla’s legal team was able to go online and discover the untruthful juror during voir dire is that it had the staff to do it, which is not always the case in criminal trials.

Testing the Effects of Selected Jury Trial Innovations on Juror

Scientific jury selection - Wikipedia

courts were less willing to make juror information readily available. ghent, annotation, right of defense in criminal prosecution to disclosure of prosecution information regarding prospective jurors, 86 a. for example, in the digital age, jurors are increasingly violating courts’ prohibitions against researching, blogging, posting, or emailing information about the case. more and more personal information is placed online, attorneys are increasingly turning to the internet to investigate and research jurors. this argument, however, is very tenuous and requires several assumptions: first, that the juror was indeed told not to post her thoughts about the case online;[70] second, that the instructions were clearly and accurately given to the juror; and third, that the juror understood the instructions and purposefully violated the court’s order. for example, only a small number of states make information about jurors discoverable.[50] in the past, numerous jurors have complained that voir dire questions and court questionnaires delved too far into personal matters. for example, attorneys are allowed a certain number of peremptory challenges to remove potential jurors during voir dire. moskitis, note, the constitutional need for discovery of pre–voir dire juror studies, 49 s. enacted, this rule might lesson society’s concern about attorneys inves­tigating jurors because it demonstrates that the practice is not solely for the benefit of one side, but instead to ensure a fair and unbiased jury. supplemental juror questionnaire procedure checklisttopicsyes no initial needs:[ ] [ ] has the jurisdiction used a supplemental juror questionnaire before?, jury consultant amy singer was doing internet research on potential jurors for a products liability case involving a maintenance worker who was severely injured after being forced to get inside a machine to clean it. while some see this as an intrusion into jurors’ personal lives, others believe attorneys, like everyone else, should be able to use this information, especially when it is in the public domain.[15] however, many attorneys employ far more sophisticated procedures to include extracting information from social networking sites and databases[16] and monitoring jurors’ online activities. attorney who discovers improper conduct by a juror in voir dire or during trial may not relay such information to the court, especially if the conduct is neither criminal nor fraudulent and the attorney thinks that keeping the particular juror will prove advantageous to her case. one district attorney claims that prospective jurors generally do not mind background checks on social networking sites if he informs them that the information will only be used to determine their disposition towards certain issues, will help streamline the judicial process, and will be disposed of after trial.[40] according to professor bennett gershman, rogue or stealth jurors are those “who seek to inject themselves into the [trial] process for self-serving reasons. attorney’s ability and desire to go online to learn a juror’s political views also demonstrates that the investigation of jurors, like voir dire itself, is not limited necessarily to ferreting out dishonesty or finding impartial jurors. this displeasure would most likely increase if jurors knew that the information uncovered was used solely for the benefit of one attorney. proposed rule might read as follows:Any attorney who discovers or learns of information before, during, or after trial that would disqualify a juror from serving, or serve as sufficient grounds for challenging the juror for cause, shall turn over such information to the opposing party., july 31, 2001, at b1 (describing the growing phenomenon of jurors representing themselves as fair but hiding a bias or motivation). zacarias moussaoui, judge brinkema used the supplemental juror questionnaire to “desk audit” potential jurors, eliminating with consent of the parties jurors whose answers to the following questions reflected bias, inability to follow the law, or, in the case of question 147, reflected a potential security risk:670(a). concerns about juror privacy started to capture the attention of judges, academics, and the public as a whole, it became increasingly difficult to inves­tigate jurors in certain jurisdictions. furthermore, these rules, for the most part, are unclear as to when an attorney must report a juror to the court. due to the nature and length of this article, the topic of juror privacy, which is worthy of further discussion, is only briefly touched upon. as a result, this saves valuable court time and reduces juror boredom. after the first day of trial, the juror wrote the following on her facebook page: “[a]ctually excited for jury duty tomorrow. practice of obtaining information about jurors outside of the tradi­tional voir dire process is not a new concept.(i) (2011) (“a lawyer who, prior to conclusion of the proceeding, comes to know of improper conduct by or toward a juror or a member of the jury pool shall report the improper conduct to the tribunal, even if so doing requires the disclosure of information otherwise protected by rpc 1. the questionnaires to potential jurors several weeks before trial gives the court sufficient time to contact jurors who do not meet the return deadline. marder, the jury process 82–83 (2005) (“for example, lawyers have sometimes wanted to ask prospective jurors about their religion or sexual orientation during voir dire, but judges have usually denied such inquiries on the ground that it is an intrusion into the juror’s privacy and not necessary for the parties to know.. in some jurisdictions, requests for using juror questions must be made sufficiently far in advance for the trial judge to issue an order for their use (accompanied by the questionnaire) six weeks or more before the issuing date of the jury summons., a big concern with online juror research is the encroachment on juror privacy. supplemental juror questionnaires can play an important role in uncovering valuable information that should be pursued during voir dire. are usually mailed to jurors three to six weeks before the trial begins. for example, in the digital age, jurors are increasingly violating courts’ prohibitions against researching, blogging, posting, or emailing information about the case.[65] thus, the ulterior motives of the defense team, such as the desire to remove a guilty vote, were irrelevant because the defense was ethically required to report the juror’s misconduct.

The Educated Jury: A Proposal for Complex Litigation

gershman, contaminating the verdict: the problem of juror misconduct, 50 s. once jurors realize that many of their voir dire answers can be verified online, they will likely be more truthful or request dismissal from the case.[30] for example, an attorney might search a juror’s blog or social networking site in an effort to discover an inappropriate remark or comment made to or by the juror during trial. _____ no _____ potential jurors who answered affirmatively to any of the above questions were removed from the jury pool. today, the internet makes verification of juror responses much easier.[43] once jurors learn that their public online activities are subject to monitoring, they will be less inclined to violate court rules for fear of being caught. willing to serve [on a jury] if they know that inquiry into their essentially private concerns will be pressed”); david weinstein, protecting a juror’s right to privacy: constitutional constraints and policy options, 70 temp. candor may be such that jurors may try to cover up their candor by crossing out some of their answers.[33] this in turn has led to one of the major criticisms of peremptory challenges: attorneys exercise them based on outdated stereotypes and hunches premised on a juror’s physical appearance. the first is the case of josé padilla,[61] which presents a traditional example of juror dishonesty. requesting the use of supplemental juror questionnairesparticularly for supplemental juror questionnaires initiated by the lawyer, it is sometimes necessary to submit a motion to the court requesting their use. former university of chicago law professor emeritus and jury research expert hans zeisel noted this potential problem with juror research many decades ago when he stated, “i hate things that benefit the richer side. during voir dire in padilla’s trial, several of his attorneys ran internet searches on prospective jurors as they were called to sit in the jury box. least for now, it appears society is willing to accept the online inves­tigation of jurors, as many believe such activity serves the greater good of empaneling a fair and unbiased jury.[ ] [ ] will there be sufficient time for review of the completed questionnaires prior to questioning of the potential jurors? outside influence is more likely with the off-site method, where the court’s ability to control the setting and monitor potential jurors is absent. rule advocated by this article is to subject any juror information discovered by an attorney to the rules of discovery if such information would result in a juror being either challenged for cause or disqualified from serving. supplemental juror questionnaires provide a greater range of information to the parties at the conclusion of voir dire questioning. thus, valuable time is not wasted questioning a potential juror who will not be qualified to serve. courts were less willing to make juror information readily available. 1992) (finding a juror who, contrary to the court’s instructions, “view[ed] story pertaining to case in news media and express[ed] her opinion concerning case to another member of jury panel” to be in contempt and fining the juror 0). 285, 286–88 (2002) (detailing the dilemma faced by jurors’ wish to protect their privacy, which must be balanced against society’s desire for this information “to ensure a fair trial for defendants”). moskitis, note, the constitutional need for discovery of pre–voir dire juror studies, 49 s. follow-up questions may be allowed by the court to clarify answers or to pursue important areas of concern revealed by the jurors’ answers. many of the notable trials in the past few years have employed supplemental juror questionnaires.[68] the juror’s act was neither fraudulent nor criminal, but it was definitely improper, and the court found it sufficient to remove her. many view this practice as a benefit to the legal system because it helps identify dishonest and biased jurors and works to limit juror misconduct, it is not without critics. how to use supplemental juror questionnairesthere are two basic methods for employing supplemental juror questionnaires. most assume all disqualifying juror information is turned over to the court or released to the public.[7] historically, criminal defense attorneys gathered information about potential jurors through private detectives, while prosecutors relied on law enforcement. more jurors drop out before the jury is formally seated and thus ‘fewer and fewer people are coming up with a criminal record in contradiction of their jury questionnaire. former university of chicago law professor emeritus and jury research expert hans zeisel noted this potential problem with juror research many decades ago when he stated, “i hate things that benefit the richer side. in fact, the vast majority of the information an attorney might learn about a juror, such as the juror’s profile, would not be discoverable. supplemental juror questionnaire checklistthe following checklist illustrates the kinds of procedural information of interest when considering the use of a supplemental juror questionnaire. joshua okun, investigation of jurors by counsel: its impact on the decisional process, 56 geo. while some see this as an intrusion into jurors’ personal lives, others believe attorneys, like everyone else, should be able to use this information, especially when it is in the public domain.[12] also, anonymous juries, in which juror names are sometimes even withheld from the attorneys trying the case, became more common.

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