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Keeping it discreet during voir dire

Lawyers who want to look up prospective jurors online during voir dire may want to be discreet.

Or just close the laptop, if they already know the judge has banned the online look.

Most judges do not know whether attorneys are using social media during voir dire, and most don’t address the issue with attorneys, according to a new survey on social media use in federal trial courts.

The Federal Judicial Center survey, reported July 29 by the U.S. Courts Administrative Office, drew responses from nearly 500 judges from all 94 districts.

Only 25 judges reported they knew attorneys had used social media in at least one of their trials, usually during voir dire. Lawyers may have looked at jurors’ Facebook pages, run their names through search engines, or looked at online profiles, blogs and websites.

Of the 466 judges who responded to the survey question about voir dire, 120 said they do not allow attorneys to do their online searching during voir dire.

Despite the pervasive presence of smartphones, jurors do not appear unduly distracted by social media while hearing cases.

Social media use by jurors “remains a relatively infrequent occurrence,” the FJC survey reported. Only 33 judges reported any detectable instances of jurors using social media, “and then in only one or two of their cases and mainly during trial,” the Center said.

Judges may have gotten out front on this issue. Many of the federal trial judges shared their instructions, given to jurors early and often, on avoiding outside influences on their service, including social media.

Jurors access Facebook and personal blogs more often than instant messaging services, the study said. Tips on jurors’ use of social media came from other jurors, court staff or lawyers in the case, and only one judge reported holding a juror in contempt of court for a social media transgression.

Overall, the incidence of social media use by jurors has remained at the same level since the FJC did an earlier survey of jurors’ use two years ago, but the specifics of what jurors share has changed, with an increase in disclosure of confidential case information, the survey said.

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