JuryScope Offers a Variety of Services

JuryScope brings an individual and customized approach to trial consulting. We seek to discover the keys to most

effectively communicate each case to our target market: THE JURY. To achieve this goal we use traditional research tools to approach litigation from a marketing perspective. We provide

our clients with a strategic, thematic plan to present a persuasive, jury-friendly message.

• Mock Trials

• Focus Groups

• Opening Statement Studies

• Witness Tests/Witness Preparation

• Venue Selection

• Juror Predispositions

The Internet and Jury Selection

Note on Professional Responsibility Information provided by the court Types of searches

Backgrounds Political Activity/Contributions Bankruptcy Plaintiff/Defendant in Lawsuit Employer (Patents?) Social Networking Sites Blogs (Daily postings during trial) Knowledge of Local Counsel Private Investigator Judicial searches

Approaching the court with the information

INFORMATION THAT CAN BE FOUND ON-LINE

INFORMATION THAT CAN BE FOUND BY A PRIVATE INVESTIGATOR

Through the Eyes of Jurors: The Use of Schemas in the Application of “Plain-Language” Jury Instructions

Understanding how jurors make decisions Filtering and categorizing information

• Categorization allows a person to identify one thing/attribute/etc. from another (11 million pieces of information per second)

• Very basic and deeply ingrained categorieso Devaluing or qualifying positive information to support beliefs

All of these unconscious and conscious stereotyping and categorization comes equally into play in a courtroom- at every level

• Difficult in that few people will admit to their biases Remedies to overcoming schema

Pre-instruct Plain language jury instructions Suggest jurors acknowledge potential biases and attempt to see both sides Examples of how the law applies?

Jurors and the Internet

Jurors firmly believe they are being helpful Mistrials?

Presumption of bad Rebuttal of no effect

Pre-jury selection juror research Inquire in voir dire

Jurors and the Internet

Jury Instructions Need to give the jurors the what and the why to understand the

restriction• Protecting the rules of evidence

Examples of instructions• Northern District of California• [Jurors] risk contempt, jail or fines for doing any online

research or communicating via "writing, the telephone, e-mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, iPhones, iTouches, Google, Yahoo ... or any other form of electronic communication for any purpose whatsoever."

• District of Colorado

Jury Instructions – District of Colorado

During the course of the trial you will receive all the evidence you legally may consider to decide the case. Researching or gathering any information on your own that you think might be helpful is against the law and would be a violation of your oath. Do not engage in any Internet or other outside reading or research in this case. Do not consult dictionaries, maps, or make any investigation about the case, the lawyers, the parties, or the witnesses. I wish I did not have to dwell on this topic, but recent events in another trial in this District, and recent technologies, require me to point out that some common practices and habits many of you enjoy are strictly forbidden in your role as jurors. You may not, under any circumstances, have your cell phones, Blackberries, Iphones, or the like on when court is in session. Whether you are in court or away from court during recess you may not “Google, Twitter, Tweet, text message, blog, post” or take any other action that has anything to do with this case. To do so could cause a mistrial, meaning all of our efforts over the course of the trial would have been wasted and we would have to start all over again with a new trial before a new jury. If you were to cause a mistrial by violating this order, you could be subject to paying all the costs of these proceedings and you could also be punished for contempt of court. This is not a trivial matter – earlier this year, after the evidence in a criminal case was completed, one juror, despite this order, “Googled” maps that she thought were relevant to the case. A mistrial was declared in that case and the juror faced contempt of court charges that could result in her being jailed and/or ordered to reimburse both the prosecution and the defense for costs and fees incurred in the trial. Her actions compromised a years-long investigation and prosecution, violated the defendant’s right to know and confront all the evidence against him, and wasted all of the time expended by the Court, counsel, and her fellow jurors to hear the case. Fairness to all concerned requires that all of us connected with this case deal with the information and with nothing other than the same information produced in this courtroom.

Jurors and the Internet

Threatened consequences Extremes – delay of trial to jail time/major penalties Judiciary is not in agreement on what level of “threat” is

appropriate

Jurors and the Internet

Who polices? The Power of Suggestion- are we encouraging the bad behavior?

Need to give the jurors the instruction to have it on the record, too many out there with daily access to the Internet

Monitor client websites, news, associated news (“press clippings”) Planting information on websites?

• Not illegal… unethical?

• Gag order or protective order in the case? Creative Court Remedies for the Tech-Addicted

Representative Written Sources:

Botelho, Greg, “Juror, witness, Facebook exchange imperils Tennessee murder conviction,” CNN, September 12, 2013

Brown, Evan, “Judge should have let lawyer Google potential jurors during jury selection,” 4Comments, September 4, 2010.

Gordon, Sara, “Through the Eyes of Jurors: The Use of Schemes in the Application of “Plain-Language” Jury Instructions,” Hastings Law Journal, Vol. 64:643 April 2013.

Mintz, Howard. “Jurors must lay off Twitter, Facebook, iPhones and all else for Barry Bonds Trial,” The Mercury News, March 5, 2011.

Nicolas, Ebony, “A Practical Framework for Preventing ‘Mistrial by Twitter’”, Cardozo Arts & Entertainment, Vol. 28:375.

Ostrow, Adam, “Social Networking Dominates Our Time Spent Online,” Mashable, August 2, 2010.

Schwartz, John, “As Jurors Turn to Web, Mistrials are Popping Up,” The New York Times, March 18, 2009.

St.Eve, Hon. Amy J. and Michael Zuckerman, “Ensuring An Impartial Jury in the Age of Social Media,” Duke Law & Technology Review, Vol. 11, No.1.

Strutin, Ken, “Social Media Misbehavior by Jurors Afflicts Trial Process,” New York Law Journal, March 16, 2011.

Zora, Marcy, “The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights,” University of Illinois Law Review, Vol. 2012:578.

www.juryscope.com

Presentation Content Written & Compiled by: Christina Ouska couska@juryscope.com

Johanna Carrane jcarrane@juryscope.com

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