Researching Jurors Online: An “Icky” but “Necessary Evil” 

During jury selection, conducting online juror research (OJR)—Internet and social media research—is a powerful tool to identify jurors who, given their experiences and opinions, may have a bias against one of the parties in a dispute. However, the acceptability of the practice has received mixed reviews from the bench.

Some judges have embraced attorney-conducted OJR, and advocate for the utility of an informed jury selection. Judge Rodney Gilstrap of the Eastern District of Texas issued a standing order expressly allowing OJR, while reiterating the guidelines set first forth in 2014 by the New York State Bar Association. The New York Bar Association stipulated that attorneys, in addition to not making direct contact with jurors via the web, should not engage in OJR where there is potential for a juror to receive an automatic notification that their publicly available information had been viewed. Other judges have been more apprehensive about OJR. Judges prohibiting the practice have argued that it encroaches on juror privacy and that OJR is an offense that jurors should not endure. However, jurors’ opinions, and even awareness, of OJR is an empirical question that needs examination in further detail.

To investigate the matter, we surveyed 347 jury-eligible respondents to gain insight into what they know about OJR and their reaction to it. Respondents were recruited using Amazon’s Mechanical Turk (M-Turk) with representation from 41 states in the US. We asked respondents if they were aware that attorneys might conduct OJR. Respondents were largely unaware; only 16.1% of respondents reported that they knew of the practice prior to learning about it via our survey.

Prior to this survey, were you personally aware that attorneys might look up public information about potential jurors online?

We observed a division of opinions as to whether respondents had an overall positive or negative view of OJR. When asked how they felt about attorneys looking up public information online about jurors, 49% responded that they felt positively about the practice, while 51% responded that they felt negatively. 

In general, how do you feel about attorneys looking up public information about potential jurors online?

Respondents were also asked to provide an explanation of their opinion of OJR. Respondents expressing positive opinions often cited the importance of a fair trial, the justice system, and the value of uncovering potential juror bias.

“The most important part about our justice system is that people receive a fair trial with an impartial jury. By researching potential jurors, it helps to meet that end.”

“It would be okay, especially to see if someone could pose a threat in regard to bias. This would weed out the potentially bad jurors. Also, this would allow for a more fair trial.”

“I believe it is perfectly acceptable to avail themselves of information we put out on the internet for public consumption.”

Respondents expressing negative opinions viewed OJR as an invasion of juror privacy and unnecessary for jury selection. Many of these participants also expressed a visceral response that they were uncomfortable with the practice.

“I don’t feel comfortable with it, PERIOD.”

“I would feel they [attorneys conducting OJR] are violating people’s rights and subverting the trial process. I would think it should be made illegal and be grounds for disbarment. It is a bad practice and it should stop.”

“I don’t think it’s necessary. Before the Internet was available to the masses, attorneys were able to pick a fair jury the old-fashioned way. It seems like a bit of an invasion of privacy, and it’s a little weird knowing that a lawyer knows things about me before I even appear for jury duty.”

Despite the fact that just over half of respondents (51%) felt negatively about OJR, a significantly greater number expressed that attorneys should be allowed to engage in the practice; 59.9% of respondents indicated that attorneys should be allowed to look up information about potential jurors.

Attorneys should be allowed to look up public information about potential jurors online.

A subset of respondents expressed that, despite a negative opinion of the process, they still felt that attorneys should be allowed to conduct OJR. As voiced by one respondent, it was viewed as “a necessary evil.”

“I have mixed feelings. I think it is a little intrusive. Yet it is also a lawyer’s job to do everything they can do to help their clients.”

“It is a necessary evil. If someone is posting, for example, racist or sexist information online, this may color their judgement against a defendant of another race or sex.”

“While I’m sure there’s nothing wrong with it, it makes me feel somewhat uncomfortable.”

“I understand the reasoning behind determining the type of person the juror is but it does feel icky.”

Judicial concern that jurors take offense to OJR is only partially meted out by the data. While some respondents may feel negatively about OJR, the data indicate that a subset of those consider it to be an effective tool to identify juror bias.

Further, when we take into account that a strong majority of respondents were unaware of OJR—until informed by this study—the data suggest that only a very small segment of the public is aware of OJR and also believes that it should be prohibited. Given that attorneys are prohibited from making contact with jurors, or engaging in OJR that would alert a juror that they were being researched, there is little chance that a juror would be made aware of the practice through jury service.

Further, of the 16.1% of respondents who were aware of OJR, 66.1% of those had a positive opinion of it. Even more strikingly, 83.9% of respondents aware of OJR indicated that attorneys should be allowed to engage in the practice. Consequently, 2.6% of all respondents were aware of OJR and felt that that attorneys should be prohibited from the practice. Stated another way, 97.4% of respondents were either unaware that OJR occurs or believe that attorneys should allowed to engage in the practice.

Attorneys should be allowed to look up public information about potential jurors online.

Regardless of whether potential jurors have a positive view of OJR, the data demonstrates that while some jurors may have a negative opinion of it, a subset are able to make the distinction between their personal feelings and whether they believe the process should continue. Further, the contingent of jurors entering the courtroom who are aware of OJR and object the to practice is only a small sliver of the group–approximately 1 out of 40. Although some of those sitting in the jury box might oppose OJR, the data indicates that most jurors will not see OJR as offensive but rather as a useful part of the selection process.

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