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Social media and jury selection in Illinois criminal defense

Posted by Steven H. Fagan | Aug 03, 2015 | 0 Comments

Illinois criminal defense lawyers sometimes like to say the law is a jealous mistress, espescially for a trial lawyer. The common phrase simply means that part of being good criminal trial lawyer requires staying on top of changes in the law, which, like that jealous mistress requires a great deal of attention and time. Sometimes that means the world outside the courtroom passes by unnoticed.

While Chicago area lawyers and judges deal with the law day to day, smartphones, tablets and computers have become integral parts of our lives and culture. That means that email, social media and other online footprints like location data have exposed almost everyone to public scrutiny, the same type of scrutiny prospective jurors receive during the jury selection process in an Illinois criminal trial.

To Google, or not to Google

Picture a seasoned criminal defense attorney with a stack of juror questionnaires for the panel of prospective jurors summoned for a trial that is about to start. Does that attorney use Google or Facebook in order to discover additional information about the prospective jurors who could sit in judgement of his client? You bet.

Because of the Internet, a criminal attorney now has the ability to discover a variety of information, including: socioeconomic data, religious affiliations, their levels of education - even political campaign donations. The attorney may find a blog or a social networking site affiliated with a member of the jury pool. Many details of a potential juror's life might be laid bare before the picky eye of a seasoned criminal trial lawyer. The juror's criminal background may be available for a few dollars, as well. 

The social media explosion

In February 2012, Facebook reported that there were more than 845 million active users of its services. Social media activities have turned more mainstream forms of communication into interactive dialogues. Participants in these social media websites tend to “let their guard down” when they generate social-media content. A survey conducted in 2010 found that 81 percent of matrimonial lawyers have used evidence from social networks in their court pleadings.

A few months ago, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466 regarding lawyers reviewing the Internet presence of prospective jurors prior to jury selection. According to the opinion, unless a lawyer is limited by law or court order they may review the Internet presence of a prospective juror. Included in that review are "postings by the juror or potential juror in advance of and during a trial." Criminal defense lawyers in Illinois and around the country are not allowed to communicate "directly or through another with a juror or potential juror."

While reviewing the Internet presence of a juror or jurors, the discovery of potential juror misconduct that is criminal or fraudulent in nature, requires that the attorney disclosure that information to the court.

American Bar Association gets involved

According to the ABA, there is interest in finding jurors who might be tainted by improper bias or prejudice. The ABA has indicated that attorneys need to determine proper investigation of jurors and improper communication with jurors. The saturation of the world by the Internet has led the ABA to encourage judges and lawyers to inform prospective jurors of the court's expectations regarding lawyers reviewing the social media presence of jurors on the Internet.

The ABA has also encouraged judges to consider making jurors aware during the orientation process that information regarding their backgrounds will be of interest to the litigants involved in any case that they me be called to sit on and that the attorneys may look into their backgrounds. That investigation may include a review of their social media activities, as well as websites, such as blogs.

Previous experience in Illinois

The state of Illinois has seen the spotlight regarding the practice of investigating the lives of jurors. Many will recall the five-and-a-half-month trial for corruption for former Illinois Gov. George Ryan. At the conclusion of eight days of deliberation by the jury, Chicago Tribune reporters revealed public records that indicated that two members of the jury may have provided false answers on the jury questionnaires. Anyone who has been convicted of a crime is not allowed to serve on a federal jury. Since both jurors had criminal records the Court removed from the jury and substituted alternate jurors with the deliberations starting over. The former governor was convicted and sentenced to six-and-a-half-years in prison.

There are many tools that can and will be used to provide clients with the best defense possible against any criminal allegations.

The Illinois criminal defense attorneys at Fagan, Fagan & Davis have defended countless clients against criminal and DUI charges throughout the Chicago area courts, including those located in Cook County, DuPage County and Lake County.  Contact us now for a free consultation.

About the Author

Steven H. Fagan

Steve Fagan earned his law degree from Chicago-Kent College of Law, is a member of the NCDD, NACDL, ISBA and a founding member of the DUIDLA. He is published and has taught CLE for lawyers on subjects such as sex offenses, DUI and criminal defense, focuses on trial work and Real Estate closings


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