For the Defense - Vol. 4, Issue 3 - 36

their backgrounds (and prior roles in the criminal
justice system) were not appropriately before the
court because they were "outside the record."
The defendants had not properly researched the
jurors or raised these issues during voir dire and
therefore, the court held, "granting a new trial
under the circumstances alleged here pertaining
to these jurors would be untenable. If so allowed
then no verdict would ever be safe from scrutiny."7
This logic was also employed by a federal district
court judge in Illinois who determined that defense
counsel waived objections to juror false statements
for failing to conduct internet searches during voir
dire that would have revealed the false statements.8

Be Prepared to Educate the Court
In 2012, the American Bar Association adopted
a duty of technology competence for lawyers.
Since then, 36 states, including Pennsylvania, have
formally adopted this model rule. However, there
is no corollary duty of technology competence for
judges. Be prepared to explain these technological
issues to judges when they arise, such as in the case
of jury selection, as the court has no corresponding
duty to be trained in such competencies. Criminal
defense counsel should not assume the judiciary has
the same level of technical acumen as does counsel.
To ensure you are best able to represent your client,
we suggest you be prepared to educate the court as
to the technological issues at hand and the general
landscape, both in Pennsylvania and across the
country regarding the ethical rules related to jury
selection.
Technology will inexorably continue to advance
and the information available to criminal defense
lawyers about prospective and sitting jurors will
only expand. Lawyers must be knowledgeable
about current technology and be able to use it to
identify unfairly biased jurors, both during jury
selection and throughout the trial. It is preferable
to seek judicial imprimatur of such research before
jury selection begins. Failure to do so may deprive
a defendant of an appellate issue or worse. If the
judge is not receptive or does not understand what
the research entails, counsel must be able to explain
why social media and other electronic research of
jurors could be vital to ensuring that a trial is fair.

About the Authors
Catherine Recker has nearly
thirty years of experience
representing individuals
and corporations in criminal
investigations, trials, appeals
and in other government
enforcement and regulatory
matters. Her practice reflects a
wide range of law enforcement focus on business
crimes including securities fraud, tax violations,
political corruption, trade and embargo violations,
antitrust violations, financial fraud, Food Drug and
Cosmetic Act and False Claims Act violations. In
2014, she was named white collar criminal defense
Philadelphia Lawyer of the Year by U.S. News and
Best Lawyers and one of the Legal Intelligencer's
Women of the Year in 2012. In 2018, Chief Justice
John Roberts appointed Ms. Recker to serve on the
Judicial Conference Advisory Committee on Criminal
Rules. Ms. Recker is a Fellow of the American
College of Trial Lawyers.
Mira Baylson of Akin Gump
regularly counsels clients and
corporations on a wide range
of legal and regulatory issues.
She has extensive experience
representing clients in matters
arising from allegations
involving, Foreign Corrupt
Practice Act (FCPA), customs violations, public
corruption, RICO (Racketeer Influenced and Corrupt
Organizations), insider trading, consumer privacy
statutes, and fraud. Mira frequently handles
complex commercial litigation with a specific focus
on defending putative class actions. Prior to joining
Akin Gump, Mira worked as a public defender
in Philadelphia and tried more than 100 cases to
verdict, including several successful jury trials. Ms.
Baylson served as a law clerk to the Honorable
Anthony J. Scirica, Chief Judge for the U.S. Court of
Appeals for the 3rd Circuit and to the Honorable
Joseph E. Irenas of the U.S. District Court for the
District of New Jersey. She is a 2008 graduate of
University of Pennsylvania Law School.
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