As time goes on, social media is having unexpected effects on society — including some strange impact on the judicial system. Just as employers have been going online in record numbers to check up on job applicants on sites like Facebook and Twitter, jury duty could now hinge on your Facebook profile. Opinions expressed on a Facebook profile, timeline or comment could easily disqualify potential jurors.
Both prosecutors and defense attorneys have always had a vested interest in making sure they can influence the jury selection process. Never before, however, has it been possible for all parties in a courtroom setting to learn so much about potential jurors. With the vast troves of information that most people now volunteer about themselves online, anything a lawyer can access may as well be considered public information.
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The danger here is not limited to people who haven’t set their comments and information “private.” In some cases, prosecutors take extra steps to gain information about jurors by offering them certain concessions. As you probably already know, serving as a juror during a long trial is a difficult and time-consuming prospect. Virtually any distraction, a simple “comfort from home,” can make a huge psychological difference.
Prosecutors realize this, and there have been cases of them using it to their advantage. For example; a court clerk may offer to “friend” a potential juror in exchange for free wireless Internet access while they are at the courthouse. Once the clerk has access to the juror’s profile, he or she is an “open book” from the social media perspective. The clerk is then free to rely information to the prosecutor at will.
In all of this, the prosecutors remain at arm’s length; although it’s very likely that a clerk would only be acting at the behest of counsel that counsel remains “blameless” for what happens next. Needless to say, the more information prosecution gathers, the stronger their case can be made — at the expense of the defense, which is provided with no such opportunities to interact with the jury pool.
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Although this may seem like a minor issue, the difference that it can make during a trial is potentially staggering. Prosecutors can seek to eliminate jurors or may even be able to tailor their presentation in court to the principles and preferences of a juror. Although each individual infraction may be minor, the cumulative effect would be to place the prosecution at an overall advantage.
Of course, this is not the only matter to consider. One could reasonably ask the question if attorneys on either side of a dispute should be looking up jurors on social media at all. Traditionally, a personal interview has been seen as sufficient for the purposes of jury selection and vetting. Likewise, jurors have been trusted to act on the orders of the court and behave as upstanding citizens once selected.
Involving social media could, arguably, infringe upon the trust vested into these citizen juries. Likewise, one must consider the effects of a legal system where there is reason to suspect a structural advantage in favor of the prosecution, no matter how slight it might be in individual instances. Ultimately, it’s up to regular citizens — such as those who end up on juries and those reading this column — to decide: Are these practices ethical? If not, what should be done about them? In a system grounded on “justice for all,” it’s important to consider consequences.