By John DiMotto
In my last post, I began a discussion on how judges must be careful with respect to using the internet to obtain information as it relates to fact finding. A much more tenuous circumstance, for which there may not be a definitive answer, is the use of the internet by judges to obtain information on prospective jurors.
In most cases, the desire/need to "google" a prospective juror for information will not be present. However, if it is a case involving millions of dollars or a case in which the verdict will have far reaching ramifications on a party or an industry, having more information about prospective jurors may be critical. I am sure that lawyers may in fact be doing this, and of course, there is no impediment to them. However, whether a judge can do so raises ethical issues that must be considered. Here is a hypothetical:
Assume a judge "googles" a prospective juror and discovers that:
1) the prospective juror has blogged on an issue that is at the forefront of the case and
2) the prospective juror has set forth very strong opinions about the issue.
Assume that in response to voir dire questions the prospective juror gives answers that are totally inconsistent with statements in the prospective juror's blog.
What is the judge's obligation?
Since the prospective juror may have sworn falsely -- if in fact that blog statement was the truth and not just posturing by the prospective juror for attention -- the judge must share this information with the lawyers so it can be followed up. The lawyers will then be in a position to potentially move to strike the prospective juror for cause or at least to intelligently exercise a peremptory challenge.
A solution to this problem is to fend off the problem before it occurs.
I would suggest that at the beginning of the trial that the judge ask the lawyers if they have any objection to the judge doing a "google" search of prospective jurors if at any time during the voir dire the judge believes that doing so will contribute to a just verdict with the understanding that the judge will share the information with the lawyers. I am certain they will agree since any information obtained will be useful to all in empanelling an unbiased jury.
No judge wants to retry a case. To have accurate information and truthful answers from prospective jurors before the trial can help reduce the need for a retrial because of juror "misconduct" during the voir dire. In fact, it may prevent such juror "misconduct."