Ethical issues involving attorneys and jurors

Should you Google prospective jurors, seeking information that it is improper to ask them during voir dire?

Elizabeth R. Feffer
2016 July

[“Google’s Lawyers Agree Not to Google Jurors”]  — headline, The Recorder, March 8, 2016.

In the copyright litigation between Google Inc. and Oracle Corporation pending in the United States District Court, Northern District of California, Google’s counsel of record, Robert Van Nest of Keker & Van Nest, indicated his client’s willingness to forego digital research as part of the jury-selection process. Judge William Alsup had proposed barring counsel from using the Internet to look into potential jurors in the case. Mr. Van Nest wrote, “Provided the ban applies equally to both parties, Google has no objection to the imposition of such a ban in this case.” Oracle’s counsel Peter Bicks, of Orrick, Herrington & Sutcliffe, took the position that an all-out ban on Internet research “would likely amount to an abuse of discretion” by the court.

While there may be no Googling of potential jurors in the Google v. Oracle showdown, there is ample opportunity for lawyers to “Google” prospective jurors in other trials. In 2014 the Los Angeles Superior Court was the venue for 3,870 jury trials. These included 810 civil jury trials. 362 civil jury trials were held in the downtown Los Angeles Stanley Mosk Courthouse. But, to get enough jurors to sit on those trials, how many individuals must the Los Angeles Superior Court summon for jury duty? In 2014 the Los Angeles Superior Court summoned 2,010,439 jurors. Only half, or 1,049,168 people, responded to their summons, and 432,550 jurors actually served.

Most of these one million Angelenos who answered their jury-duty summons have an online presence of some kind. The ever-evolving and advancing nature of technology ensures that trial lawyers today can learn far more about prospective jurors than even five years ago. The long-ago created ground rules regarding ethical limits of contacting prospective and empaneled jurors did not anticipate social media, Internet search engines, and the sale of consumer data aggregated by technology firms. These technologies have made some of the boundaries of ethical conduct fuzzy.

The Internet presence of potential jurors may include content that they created directly, such as a Facebook page, Instagram profile, a Twitter account, or a blog. Such content may readily be obtained through an Internet search. There is, of course, other content that prospective jurors might not have posted themselves, but nonetheless may reveal quite a bit of personal information about a prospective juror.

Attorneys can access websites that list title owners to property, political contributions, membership in charitable or religious organizations, job history via LinkedIn, or even one’s “wish list” on Amazon.com. Professional responsibility and ethics are implicated in such outside research, because a lawyer may learn information about a prospective juror that would not usually be revealed during voir dire.

Your job as a trial lawyer is to fill the jury box with jurors. You owe an undivided duty of loyalty, and duty of competence, to your client, and of course you want to win your case. Your conduct must also be within ethical parameters. This article will review existing professional ethics rules and statutes, and raise issues where there are no clear-cut rules.

Ethical considerations in jury selection

Code of Civil Procedure section124 provides that “…the sittings of every court shall be public.” This, of course, includes jury selection. The Trial Jury Selection and Management Act (Code of Civil Procedure §§ 190 et seq.) sets forth the law regarding selection of jurors and formation of trial juries in all trial courts of the state. (Code Civ.Proc. § 192.) In enacting the Act, the “Legislature recognizes that trial by jury is a cherished constitutional right, and that jury service is an obligation of citizenship.” (Code Civ.Proc., § 191.)

The Act imposes limitations on voir dire, in order to “select a fair and impartial jury in civil jury trials.” Code of Civil Procedure section 222.5 defines an “improper question.” Standards of Judicial Administration 3.25 provides that the trial court should not permit counsel to ask improper questions. Most critically, a juror may not be examined on voir dire solely for the purpose of laying a foundation for the exercise of a peremptory challenge. (See, e.g., People v. Ferlin (1928) 203 Cal. 587, 598.)

In the seminal case of People v. Wheeler (1978) 22 Cal.3d 258, 263, the California Supreme Court observed: “…venirmen are not required to announce their race, religion, or ethnic origin when they enter the box, and these matters are not ordinarily explored on voir dire. The reason, of course, is that the courts of California are – or should be – blind to all such distinctions among our citizens.” (Emphasis added.)

Indeed, Code of Civil Procedure section 231.5 prohibits parties from using a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of his or her race, color, religion, sex, national origin, sexual orientation, or similar grounds.

Already one can see potential problems raised by Internet research of jurors. The first is that an attorney can readily locate information about a potential juror online regarding sexual orientation, religion, and the like, when inquiry into such areas in open court would be clearly improper. While posing a direct question asking prospective jurors to announce their race, religion, ethnic origin, or sexual orientation would be improper (see Wheeler above), the answer to these questions, and more, can be readily found online.

The next potential problem is, what do you do with the information you learn online about a prospective juror? The information you discover is arguably attorney work product. Presumably you are conducting the research to identify prospective jurors that might be tainted by improper bias or prejudice. The information that lawyers learn online, however, creates the potential for a peremptory challenge to be based on a legally-impermissible ground.

What if a lawyer does, in fact, exercise a peremptory challenge to a prospective juror based on information discovered on-line, and the challenge would, in fact, run afoul of Code of Civil Procedure section 231.5 and Wheeler? Lawyers have an obligation to follow the law. (Bus. & Prof. Code, § 6068, Rule of Professional Conduct 5-200.) How do you know your opposing counsel isn’t making an improper challenge? Because the basis for your opponent’s peremptory challenge was not revealed in open court, how would you know to make a Wheeler/Batson motion? (A Wheeler/Batson motion is a challenge to other side’s peremptory challenge, on the basis of an impermissible group bias, pursuant to People v. Wheeler, supra, and Batson v. Kentucky (1986) 476 U.S. 79.)

Finally, how, exactly, is the judge to correctly rule on such a Wheeler/Batson motion, when the peremptory challenge is based upon information that was not obtained in open court? Unlike lawyers, judges are prohibited from conducting independent research, so the judge will not be performing an Internet search on prospective jurors. Thus, a judge may very well deny a Wheeler motion because the peremptory challenge appears proper “on its face,” based upon the information elicited in the courtroom, not knowing that the challenge was actually improper.

Deciding whether to conduct on-line research regarding potential jurors implicates an attorney’s professional obligations to his or her clients. California Rules of Professional Conduct, rule 3-110 imposes the professional obligation to perform work competently, i.e., with diligence, learning, and skill. The current sentiment seems to be that lawyers have an obligation to conduct online research of prospective jurors. Whether conducting Internet research is required by the standard of care has not yet been settled. In ABA Formal Opinion 466, the American Bar Association did not take a position on standard of care. The ABA did, however, reference a comment to Model Rule 1.1, which explained that a lawyer “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

Lawyers also are obligated to be honest with the court (Rules of Professional Conduct, rule 5-200). Further, as noted below, lawyers are prohibited from communicating with jurors. (Rules of Professional Conduct Rule 5-320.)

Limits on juror contact and communications

There is a line between properly investigating jurors and improperly communicating with them. Ethical rules regarding contact between lawyers and jurors are set forth in California Rules of Professional Conduct, rule 5-320. A member of the Bar connected with a case “shall not” do any of the following: communicate directly or indirectly with anyone the member knows to be a member of the venire from which the jury will be selected for the trial of that case; during trial a member connected with the case shall not communicate directly or indirectly with any juror; and during trial, a member who is not connected to the case shall not communicate directly or indirectly concerning the case with anyone the member knows is a juror in the case. Rule 5-320 sets forth additional prohibitions, and adds that “All restrictions imposed by this rule also apply to communications with, or investigations of, members of the family of a person who is either a member of a venire or a juror.” The rule clearly prohibits both direct or indirect communication with jurors and their families.

There is scant authority on this rule, which, the author hopes, reflects widespread compliance with the rule. The California Supreme Court did affirm the disbarment of an attorney who violated the rule, in In re Possino (1984) 37 Cal.3d 163. The American Bar Association has also weighed in on this issue in its ABA Formal Opinion 466 (as briefly discussed above).

This leads to the question, who is a “juror”? Rules of Professional Conduct, rule 5-320(l) defines “juror” as “any empaneled, discharged, or excused juror.” State Bar Formal Opinion 1988-100 provides that the Rules of Professional Conduct do not distinguish between a “juror” currently sitting on a case and a “juror” of the discharged jury. Thus, if a juror is sworn in, but is dismissed or excused during the trial, prior to the verdict being reached, the person is a “juror.” All of the professional obligations and prohibitions apply. A lawyer (or one connected with the lawyer, as enumerated in R.P.C. 5-320, supra) cannot contact a dismissed or excused juror prior to the conclusion of the case. A prospective juror who is excused during voir dire, however, and is not a sworn member of the jury, may be contacted, because that person is not a “juror.”

When a jury separates (such as at the end of the day), Code of Civil Procedure section 611 requires the court to give a separation admonishment to the jurors. The admonishment is to include the “…prohibition on research, dissemination of information, and conversation” to “all forms of electronic and wireless communication.” Failure to comply with this admonishment may subject a juror to contempt pursuant to Code of Civil Procedure section 1209(a)(6). This statute provides for contempt based on “willful disobedience by a juror of court admonishment” regarding the “no communications” admonishment.

Further, Penal Code section 96 provides that it is a felony for a juror and those summoned as a juror to, among other things, make a promise or agreement to give a verdict or decision for or against any party, or “willfully and corruptly permits any communication to be made to him.”

It is a crime to bribe (or offer to bribe) a juror. (Pen. Code, § 92.) It is also a crime to “corruptly attempt [] to influence a juror, or any person summoned or drawn as a juror.” (Pen. Code, § 95.) Prohibited conduct is not just a threat or intimidation, but also includes (but is not limited to) “Any oral or written communication with him or her except in the regular course of proceedings.” (§ 95(a).)

Conducting Internet research of prospective jurors during voir dire, therefore, does not implicate the Rules of Professional Conduct’s prohibition on contacting jurors. So long as they are excused prior to being sworn in, prospective jurors are just that, and not “jurors.” Lawyers, however, may conduct online research of sworn jurors during trial, perhaps to determine whether jurors are complying with the court’s separation admonition, or, worse, violating the law. Because lawyer/juror contact during trial is strictly forbidden, conducting Internet searches may implicate ethical rules, even inadvertently. Certainly a lawyer’s private investigator cannot “friend” a juror on Facebook during trial. And, yet, when an individual makes repeated visits to a person’s Facebook page it will often trigger a recommendation that the Facebook page owner “friend” the onlooker. This may be disconcerting (to say the least) to a juror who all of a sudden sees a private investigator – or even worse – trial counsel being recommended as the juror’s “friend” during trial.

Relevant jury instructions and conclusion of trial

Several California Civil Jury Instructions (CACI) concern the conduct of jurors. CACI 100 prohibits the use of electronic devices or media, to send or receive information. Use of the Internet “in any way” is prohibited. CACI 116 covers “Why Electronic Communications and Research Are Prohibited.” The importance of these prohibitions is underscored, because they are essentially repeated at the end of the case, in CACI 5000. These prohibitions are lifted at the end of the case, now codified at CACI 5090. Jurors are then free to blog and Tweet!

The trial is over, the verdict has been read, the jury has been discharged, and you (and your opposing counsel) hope to glean some information from the discharged jurors out in the hallway of the courthouse. Yet, as you know, judgment has not been entered, and there is also a period of time in which a motion for new trial may be made.

Juror misconduct is one of the statutory grounds for moving for a new trial, as well as “Irregularity in the proceedings of the court, jury or adverse party” by which either party was prevented from having a fair trial. (Code Civ.Proc., § 657.) A motion for mistrial based upon juror misconduct is often based upon declarations from jurors. (See Evid. Code § 1150.) So, while nothing prohibits the lawyers for the winning side from hosting the jurors in a sumptuous feast at a pricey restaurant, said lawyers should also be aware that the event may find its way into a juror declaration in support of their opponent’s motion for new trial.

Conclusion

Not so long ago the author tried jury trials using foam core blow-ups of photographs and relevant jury instructions. Now, of course, we are well past the point where PowerPoint presentations, with embedded video clips, are novelties. Trial techniques progress along with technology. While rules are clear with respect to the legality and ethics of contacting jurors, conducting online research during voir dire raises ethical issues that implicate the right to a fair trial itself.

Elizabeth R. Feffer Elizabeth R. Feffer

Judge Elizabeth R. Feffer presides over a civil independent (direct) calendar courtroom at the Stanley Mosk Courthouse in downtown Los Angeles. Since 2010, Judge Feffer has been a panelist for the California State Bar’s annual “Coaching for the New Practitioner” program, sponsored by the State Bar’s Litigation Section, for new admittees. Judge Feffer was appointed to the bench in 2007.

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