For the Defense - Vol. 4, Issue 3 - 35

Juror Research
Every lawyer approaches jury selection using
instinct or gut feelings. Yet, with the Internet,
blind guessing can give way to informed choosing
so long as certain rules are followed.

Under the Pennsylvania Rule of
Professional Conduct 3.5, a lawyer
shall not communicate ex parte with a
juror during a proceeding.
Passive Internet research, that is research
focused on a particular person which does not
alert them to the research being done, is generally
approved by state bar associations across the
country.3 Bar associations have, however, uniformly
declined to endorse research which includes the
direct contact of jurors either through real or fake
profiles so as to access information and material
marked private. Some states even forbid indirect
contact with a prospective juror, such as the
automatic LinkedIn message alerting a user that
someone has searched her LinkedIn profile.4
Before conducting juror research, we
recommend alerting the trial court. We have,
in the past, discussed it informally at pretrial

conferences and then, if not raised during that
discussion, addressed it in a letter to the court
copying the prosecution. Courts across the country
handle the issue of juror research slightly differently
and not raising it with the court could end in either
potential sanctions or impair a potential avenue to
appeal. For example, in a high profile case in the
Northern District of California, one district court
judge made the requirements of Internet research
of potential jurors so onerous that both parties
mutually agreed not to perform it.5 On the other
hand, a state court in New Jersey prohibited counsel
from conducting Internet searches in the courtroom
during voir dire, resulting in an appellate court
reversing this decision as an abuse of discretion.6

Raise the Issue or Waive it?
In fact, it appears now that failing to raise the
issue with the court or failing to conduct juror
research during voir dire could be a drastic tactical
error and could provide the basis for an ineffective
assistance of counsel claim. For example, the
Pennsylvania Superior Court recently declined
to reverse a trial court's determination that two
jurors' dishonesty on the questionnaire regarding
Vol. 4, Issue 3

l

For The Defense

35



For the Defense - Vol. 4, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 3

Contents
For the Defense - Vol. 4, Issue 3 - 1
For the Defense - Vol. 4, Issue 3 - 2
For the Defense - Vol. 4, Issue 3 - Contents
For the Defense - Vol. 4, Issue 3 - 4
For the Defense - Vol. 4, Issue 3 - 5
For the Defense - Vol. 4, Issue 3 - 6
For the Defense - Vol. 4, Issue 3 - 7
For the Defense - Vol. 4, Issue 3 - 8
For the Defense - Vol. 4, Issue 3 - 9
For the Defense - Vol. 4, Issue 3 - 10
For the Defense - Vol. 4, Issue 3 - 11
For the Defense - Vol. 4, Issue 3 - 12
For the Defense - Vol. 4, Issue 3 - 13
For the Defense - Vol. 4, Issue 3 - 14
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For the Defense - Vol. 4, Issue 3 - 24
For the Defense - Vol. 4, Issue 3 - 25
For the Defense - Vol. 4, Issue 3 - 26
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For the Defense - Vol. 4, Issue 3 - 30
For the Defense - Vol. 4, Issue 3 - 31
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For the Defense - Vol. 4, Issue 3 - 33
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For the Defense - Vol. 4, Issue 3 - 35
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For the Defense - Vol. 4, Issue 3 - 54
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