jury selection social media is changing the game revised · networkingsites| january2017(2016), ....

OCPA Educational Conference David Cannon, Ph.D.

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JURY SELECTIONHow Social Media is Changing the Game

OCPA 2018 Educational Conference

• Co-Founder, Trial Innovations

• Ph.D., Clinical Psychology and Law

• 21 Years in field of Trial Consulting

David Cannon, Ph.D.David@Trialinnovations.com310-927-5879

I. Challenges of Jury SelectionA. Juror BiasB. Juror CandorC. The “Minimization Effect”

D. The Set-aside Question

II. Overcoming those ChallengesA. Social MediaB. Voir Dire

C. QuestionnairesD. Rating Jurors

E. Avoiding the Set-Aside Question

Presentation Overview

OCPA Educational Conference David Cannon, Ph.D.

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Juror Bias

CONCEPTUAL FILTERS: ATTITUDES AND BELIEFS

  Result in selective perceptions of the evidence

  We accept or attend to things that agree with our preconceptions

  We fail to hear or ignore things that disagree with them

HOW MALLEABLE ARE JURORS�ATTITUDES AND BELIEFS?

Acquired

Beliefs

AcquiredAttitudes

PersonalExperiences

OCPA Educational Conference David Cannon, Ph.D.

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THE PROCESS OF DELIBERATION

Blends the facts of the case we put on, with the perceptionsand experiences of the jury

People DO change their minds, but they would RATHER not

Juror Candor

OCPA Educational Conference David Cannon, Ph.D.

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It takes a while for people to warm up….

Voir Dire:

  Smoking related illnesses:  Did not raise hand – Know

someone with smoking related illness

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Case Relevant Experiences

“I don’t do bumper stickers, so I was safe from individual questioning on that one.”

Straight from the Horse’s Mouth

OCPA Educational Conference David Cannon, Ph.D.

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.

Jurors often look for reasons toexclude themselves from having to respond

to questions.

Getting Inside Jurors’ Heads

The “Minimization Effect”

Examples of Minimization Language

“I just read extensively in the newspaper.”

“Nothing that stands out.”

“Other than that, I haven’t really followed it too well.”

“I just kind of followed the newspaper articles.”

OCPA Educational Conference David Cannon, Ph.D.

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• Use juror questionnaire

• Attorney conducted voir dire

• Encourage honest disclosure

• Reduce the anxiety of the situation

• Follow-up in private

• Social media and backgrounds

What to Do

Now we have another avenue to get to know the juror.

How does the juror present himself or herself to the online world, and how is this consistent or inconsistent with what we are observing in the courtroom?

SOCIAL MEDIA AND THE INTERNET

Social Networks– Facebook, Twitter, LinkedInOpen Web – Google, Bing, Yahoo! Deep Web – Public RecordsArchived Web – Cached Google Search

OCPA Educational Conference David Cannon, Ph.D.

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EFFECTIVE RESEARCH SKILLS

No FootprintsTiming and Red HerringsEffective Search ToolsIdentifying Useful ResultsInsufficient InformationAvoid LiabilityCompliance

POPULAR PLATFORMS

68% Facebook28% Instagram (IG)26% Pinterest25% LinkedIn21% Twitter

OCPA Educational Conference David Cannon, Ph.D.

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USING RELEVANT PLATFORMS

FACEBOOKPrivate v. Public Likes GroupsFriendsPicturesPosts

LINKEDIN Adjust SettingsInput LocationConnectionsSimilar Concepts

LikesGroups

EmploymentEndorsePremium Profiles

SEARCH FOOTPRINT

ß LIMITATIONS

OCPA Educational Conference David Cannon, Ph.D.

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TWITTER

Limited Visible TweetsPublic ProfilesHashtagsPrivate Users

“Follow” Button

FINDING HISTORIC TWEETS

USING SEARCH ENGINES

GOOGLE#1 Search EngineQuotationsKeywordsConnecting TermsResults

ImagesMaps

Google EarthUse Chrome

OCPA Educational Conference David Cannon, Ph.D.

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PUTTING IT ALL TOGETHER

Credible ResourcesRecognize PatternsTracking TimeCritical ThinkingFact-DrivenConcise Summaries

ILLUSTRATIONS

PREVENTING PROLONGED TRIALS

Florida civil juries consist of six (6) jurors, with only three (3) strikes permitted per party, and a limited number of available alternates. This was a premises liability case. Plaintiff alleged injuries and losses due to the negligence of the Defendant (our client). We were looking for potential jurors with prior lawsuit histories, criminal records, and prior affiliations with the Defendants. Local demographics favored the Plaintiff. Googling a final name in quotations yielded a criminal record of “check-kiting,” resulting in removal for cause.

OCPA Educational Conference David Cannon, Ph.D.

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FBI: FACEBOOK INVESTIGATION

If an individual does not want to be found, then even with a wealth of facts known about an individual can be irrelevant. After a week of exhausting resources, the subject’s address was found through an extensive Facebook investigation. This was accomplished by tracking common friends, family, and fans. Identifying characteristics were visible outside the subject’s home via Google Earth, resulting in a response from the subject after a period of ignored responses.

Have you ever been arrested?

NO

Have you ever been arrested?

OCPA Educational Conference David Cannon, Ph.D.

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.

Oh, My bad. I thought you meant, was I ever arrested and represented by the county public defender. Also, my

case isn’t resolved. So, that is why I thought it didn’t apply to me.

Getting Inside Jurors’ Heads

Law enforcement

LEGAL ETHICS

OCPA Educational Conference David Cannon, Ph.D.

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MODEL RULES:FORMAL OPINION 466 (2014)

Electronic Social Media (ESM)“For ESM and other websites that are publicly available, [a] lawyer may review them since ‘The mere act of observing that which is open to the public would not constitute a communicative act that violates 3.5(b).’”

“[A] lawyer cannot send an ‘access request’ to the website subscriber as this would constitute a prohibited communication with a juror. [He] also cannot do so through the acts of another. See Model Rule 8.4(a) Misconduct.”

Unauthorized Communications

CASE LAW

SLUSS V. COMMONWEALTH(2012)

“Facebooking the jury”

OCPA Educational Conference David Cannon, Ph.D.

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JOHNSON V. MCCOLLOUGH(2010)

Case.net – Johnson Standard

• Look out for minimization language

• Do not be discouraged

• Continue to probe with open-ended questions

• Look for consistencies and inconsistencies with information that is available online.

Putting it all together

Voir Dire

OCPA Educational Conference David Cannon, Ph.D.

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GET JURORS TO OPEN UP

 Draft Questions in advance. Start broad and get specific. Ask if anyone has had experiences or if friends or family

members have had them. Ask attitude questions. Don’t worry about contaminating the pool.  It’s harder than you think.

 Reinforce responses. Loop others in – “Who else feels that way?”

 Keep it conversational (Talk show style).

Juror Questionnaires

INCLUDE QUESTIONS YOU DON’T WANT TO ASK(PRIVATE AND PERSONAL QUESTIONS)

 Arrest history Lawsuit history Medical history Substance abuse Death of loved ones Recent losses Perceptions of your client

OCPA Educational Conference David Cannon, Ph.D.

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EMPLOYMENT; LEADERSHIP POTENTIAL

EMPLOYMENT SATISFACTION; EMPLOYMENT HISTORY; BUSINESS OWNERSHIP

SKILL SETS; LEADERSHIP; DE FACTO EXPERTISE

OCPA Educational Conference David Cannon, Ph.D.

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UNION MEMBERSHIP —GRIEVANCE HISTORY; LEADERSHIP

SOCIOECONOMIC STATUS

EDUCATIONAL BACKGROUND; LEADERSHIP; DE FACTO EXPERTISE

OCPA Educational Conference David Cannon, Ph.D.

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POTENTIAL LEADERSHIP; ACTIVISM

POLITICAL ATTITUDES

OTHER ADULTS AT HOME; POSSIBLE SOURCES OF INFLUENCE/INFORMATION

OCPA Educational Conference David Cannon, Ph.D.

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OTHER SOURCES OF INFLUENCE/INFORMATION

LEADERSHIP

SOURCE OF ATTITUDES OR BELIEFS

OCPA Educational Conference David Cannon, Ph.D.

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LEADERSHIP; POTENTIAL FOREPERSON

CLEAN-UP QUESTIONS

Jury Selection: Rating Jurors

OCPA Educational Conference David Cannon, Ph.D.

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DIMENSION ONE:Bring it all together to rate the jurors based on their :Constellation of Attitudes, Beliefs and Personal Experiences; Online Info

1

Negative

3

Neutral

5

Positive

DIMENSION TWO:

“Influence Quotient”

1

Non-ParticipantPersuader

5

Persuader

3

Participant

JURY SELECTION

1. Give advanced thought to jurors you want and don’t want.

a. Make decisions based on these hypotheses2. Rate Jurors on Two Dimensions:

a. Constellation of attitudes, beliefs, personal experiences, social media, and backgrounds

b. Leadership or “Influence Quotient”3. Stick with your initial impression to minimize the

likelihood of regrets from second guessing yourself.

a. “Play out” how the jury will look after anticipated strikes before striking jurors.

OCPA Educational Conference David Cannon, Ph.D.

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WHAT TO DO?

1

5

1

3

5

5

5

1

5

1

?

?

?

?

?

RATING LEADERSHIP

What to Avoid

• Avoid asking the hard questions upfront (Warm up the jurors)

• Start with open-ended question

• Avoid the set-aside question

“All looks yellow to the jaundiced eye.”-Alexander Pope (1709)

What to Avoid: The Set-aside Question

OCPA Educational Conference David Cannon, Ph.D.

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Common Examples

“Can you be fair and impartial? Can you follow the judges instructions and

listen to the evidence?”

“Can you set-aside your bias and decide this case solely on the evidence

presented?”

“I am an open-minded and fair man. I could, I would look at the evidence. I believe he is innocent until proven guilty”

John Walker Lindh: American Taliban

• “He was involved with the enemy; he is as bad as Bin Laden”

• Definitely a traitor• Probably a terrorist

“I would consider all the evidence presented by the court and give a fair opinion. We all have to be careful as to what we say about Mr. Lindh.”

John Walker Lindh: American Taliban

• “He is definitely guilty because he was in conspiracy with the Taliban against the United States to kill and do harm to our people

• “He should receive the minimum life imprisonment or the death penalty

• Definitely a traitor• Definitely a terrorist

OCPA Educational Conference David Cannon, Ph.D.

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What to Avoid

• Avoid the set-aside question

• Avoid loaded language

• Lead the juror to where you want him to go

CITATIONSJohn G Browning, Voir Dire Becomes Voir Google: Ethical Concerns of 21st Century Jury Selection Lawyer review of jurors' presence on the Internet (2016), http://www.americanbar.org/publications/youraba/2015/november-2015/lawyer-review-of-jurors-presence-on-the-internet.html.

Johnson v. McCullough, 306 S. W. 3d 551 (Mo. 2010) (en banc).

Margaret Bull Kovera & Brian L. Cutler, Consultation During Voir Dire, Jury Selection 143–154, 143-154 (2012).

Rule 3.5: Impartiality & Decorum of the Tribunal, Rule 3.5: Impartiality & Decorum of the Tribunal | The Center for Professional Responsibility (2017), http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professionalconduct/rule_3_5_impartiality_decorum_of_the_tribunal.html.

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CITATIONS

Shannon Greenwood, Andrew Perrin & Maeve Duggan, SOCIAL MEDIA UPDATE 2016 PEW RESEARCH

CENTER: INTERNET, SCIENCE & TECH (2016), http://www.pewinternet.org/2016/11/11/social-media-update-2016/.

Sluss v. Commonwealth, 381 S. W. 3d 215 (Ky. 2012).

Theodore O Prosise, Shadow Juries: A Unique Advantage in Civil Trials ABA Section of Litigation (2009), https://apps.americanbar.org/litigation/litigationnews/trial_skills/trial-practice-shadow-juries.html.

Top 15 Most Popular Social Networking Sites | January 2017, TOP 15 MOST POPULAR SOCIAL

NETWORKING SITES | JANUARY 2017 (2016), http://www.ebizmba.com/articles/social-networking-websites.