"The purpose of voir dire questioning is to obtain a fair and impartial jury"

Voir Dire and the Digital Divide

-- By JonathanBonilla - 15 May 2009

The litigation process in the United States has not adequately responded to the vast changes in technology that have occurred in the past couple of decades. This is especially noticeable in one particular aspect of trial, voir dire, where attorneys for both sides meet with potential jurors to try and select jurors who will be impartial in their decision. At least, that is the theory. In practice, voir dire is a process that allows a knowledgeable attorney to gain an upper hand before the trial begins, by selecting (or rather, not excluding) only jurors who would appear to be most favorable to their position in the litigation.

The Evolution of Voir Dire

Using jury selection to one party’s advantage in itself is not unique to technological advancement. Prior to the widespread dissemination of technology, jury profiling attempted to skew the system by employing a sort of personal, psychological approach to finding jurors who might be more inclined to favor a side during litigation. For instance, if a potential juror was found to have a high risk profession, a plaintiff’s attorney in a personal injury suit might want to exclude them using a peremptory challenge, under the belief that this potential juror would be less sympathetic to one who sought recovery for an injury. However, the pre-technological approach to jury selection ultimately resulted in a less than exact science, basing decisions on gut instinct, and relying on information provided by the jurors themselves. Notwithstanding its limitations, essentially any attorney was capable of employing their own technique (whether effective or not) to attempt to select a favorable jury.

While psychological jury screening continues to be used today, a new method of jury selection has risen to provide even greater benefits to lawyers able to make use of it: digital screening. Online data aggregators, showcased in No Place to Hide, allow for subscribers of their data services to obtain instant access to vast profiles of information relating to almost any person in the United States (for instance, LexisNexis? Risk Management or Applicant Screening). By using these profiles to research potential jurors prior to jury selection, a lawyer would remove one of the limitations of traditional jury profiling: limited information. Since psychological jury screening is based upon using information to make decisions relating to which jurors should be excluded, it would seem to follow that having the complete set of information relating to a juror would be more advantageous. Questionnaires for potential jurors to fill out for voir dire must be agreed upon by both parties, thus limiting their reach to merely asking about basic background information. For the verbal questioning aspect of voir dire, an attorney is limited to a scope of questioning “within the discretion of the court.” Furthermore, the information that is obtained from jurors during voir dire questioning might not fully reflect any biases the potential juror might have, especially if the juror is trying to hide the bias from the questioning attorney. Thus, digital screening would remove the need to hear the information from the juror herself, lifting this limitation. As a result, an attorney conducting voir dire with aggregated information would already have the jurors’ answers to the questions being asked, allowing for instant verification of the jurors’ truthfulness, while the other party (without this information) would be left in the dark.

Admittedly, none of the enumerated benefits is alone much cause for concern. However, in the aggregate, the use of digital screening by one party during voir dire has the ability to advantage that side, due to the range of benefits obtained. Of course, access to these databases does not come cheaply, resulting in a large financial barrier to those who wish ensure fair access to information during voir dire. This in itself raises several problems, especially in a criminal trial setting where overworked and underfunded public defenders must defend against ambitious prosecutors who have the full resources of the State at their disposal.

What Can Be Done?

One possible way to remedy this information disconnect is to try and remove the ability to use technology to screen potential jurors during voir dire. This can be affected in either of two ways: disassociating the jurors from their names until after selection occurs, or disallowing internet access (or technology generally) from being a part of voir dire. However, both of these solutions are problematic, namely that they would require passage of an amendment through the New York legislature to change the Criminal Procedure Law. Additionally, the net effect would be to remove information from the courtroom, which might be seen as a negative result, especially when even simple web tools such as Google or social networking sites are capable of catching untruthful potential jurors.

A second option would be to create an organization that would work to benefit public defenders by providing the relevant technological services, in the hope of leveling the playing field. Since it would be impractical to attempt to create and maintain a separate information database, even if initially limited to New York City, such an organization would need to work out a deal with one of the established information providers. One example of how this organization could operate is by providing training and log-on information to public defenders, empowering them to be able to perform the necessary screening with their own laptops. This solution unfortunately has its negatives, too. Beyond the large costs of starting and implementing such an operation, this solution does not really address the underlying problem (of using voir dire to skew a trial in one’s favor), but merely attempts to counter what may be perceived as unethical conduct, with its own potentially unethical conduct.

Assuming such an organization was to succeed, it would greatly improve the ability of public defenders to effectively represent their clients, by disseminating aggregated information that otherwise would have been unavailable, in the hope of countering any prosecutorial attempts to obtain a skewed jury.

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As you acknoledge yourself, the difference between inexact psychological profiling of jurors at voir dire and having a couple of attorneys with laptops sitting in the back of the room googling each juror's name is one of degree, not of kind. To the extent that fire can/should be fought with fire, then providing criminal defendents with the means to do their own online juror vetting would clearly restore some degree of balance to the system. But if the bar for effective counsel generally is so low, I don't see any reason to expect that courts will bat an eye at resource-disparity in voir dire, given that they have done nothing about prior forms of psychological profiling. Setting up an organization to carry out jury vetting for public defenders would be great, but how do you fund it?

During class, Eben seemed to suggest that the action may not be during voir dire in any case: if a prosecutor can arrange for only sympathetic jurors to be called to jury duty in the first place, then nothing a defense attorney can do at voir dire will make any difference anyway.

-- AndreiVoinigescu - 16 May 2009

In considering options for funding, it seems that private funding might not be too easy to come by. Compared to other causes, "criminal defendants" are not likely a sympathetic group capable of pulling in the needed donations. However, considering the necessarily public nature of this cause, it might be possible to obtain funding from the City itself, which pays for the public defenders in the first place.

As for the second issue you bring up, it is a separate problem in itself - one that presumably is not occurring yet (unlike the voir dire issues). "Fixing" the potential jury pool also seems to have a much more blatant element of "unfair trial" than voir dire selection, since voir dire is a traditional element of trial, whereas jury pool selection is traditionally performed at random. If such occurred and was discovered, I think it would be along the lines of an "abuse of power" scandal that the media love to uncover.

-- JonathanBonilla - 23 May 2009

Jonathan,

Interesting paper, but a few points. One, you note that indigent defendents “choose between a public defender or pleading guilty in exchange for a reduced sentence” but this is not strictly accurate: Those defendants who would otherwise be guaranteed an attorney during trial (i.e. those who the judge has decided to sentence to any jail time at all or who have been charged with a crime carrying a potential penalty of 1 year or more) are also guaranteed an attorney during the pleading process. This is precisely why so many defendants are pressured to plead out by their public defenders, who have to decide how to allocate their extremely limited resources and time amongst their clients. It’s not correct to suggest, as you do, that indigent defendants choose between a public defender or a plea bargain; unless they waive the right to counsel, the public defender is part of the whole package.

I’m also unsure about the main point of your essay. Are you primarily arguing that the reason we don’t give public defenders enough money to conduct data aggregating studies on potential jurors is because the bar for ineffective assistance claims is so high? If so, your energies seem to me misplaced. The Strickland standard does a lot to keep criminal defendants saddled with terrible lawyers and lawyering, but I find it really hard to place your claims about data aggregation in that context. You may be right that a high standard of ineffective assistance keeps lawyers from doing a lot of things they might otherwise be compelled to do, but this is an observation so general and so unrelated to what I think is your real argument that I'm not sure it's even worth making.

If you really want to argue that not having such information has the “practical effect of dooming the defendant’s trial before it begins,” that is the argument you need to make instead of expounding about the ineffective assistance of counsel standard. I think that’s your major proposition, correct? That without having a level playing field in terms of juror information, indigent defendants won’t receive a fair trial? If that’s this case, unfortunately, you’ve presented only some solutions in search of a problem. At no point do you convince or even hint to your reader why “the ability to know every detail about a potential juror” is even desirable, much less necessary to having a fair trial. Until you convince your audience that these propositions are true (a tough sell in this crowd), you’re spinning your wheels arguing about how to get better data aggregation to public defenders.

-- DanaDelger - 23 May 2009

Dana,

Thanks for the comments. I am in the process of editing my essay, so I apologize if I remove some of your quotations... 24 May 2009

I have edited the essay to further explain the advantages of using information profiles in voir dire. Admittedly, on further research I was unable to locate articles that explicitly discussed the effect of technology on jury selection, and initially had taken Prof. Moglen's word for it that such effect was pronounced. As a result, I have softened my language and changed the focus of the effect, from "dooming a trial" to resulting in an "information disconnect."

-- JonathanBonilla - 28 May 2009

• No one should ever rely on anything I say, that's for sure. But I think the route to success here isn't to decide whether inequalities of access to information will doom the criminal defendant or merely impede fairness: in every area the mismatch of resources between the public prosecutor and the indigent defendant's lawyer makes itself felt one way or another. What's interesting here is not either a prediction of doom or triumph, no doubt more dramatic than the eventual reality, but a more qualitative assessment of what one does want as an advocate in the jury selection process, whether the availability of net-generated profiling data is becoming useful to trial counsel, not only in criminal cases with substantial resource disparities, and if so, how. I agree that information may be hard to come by, but there should be some out there. This topic called for research, rather than speculation, I believe.