Computers, Privacy & the Constitution

"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 a 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 behind it. 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 psychological approach to jury selection ultimately resulted in a less than exact science, basing decisions on gut instinct. 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). Undoubtedly, such information would allow for an attorney to more effectively pick which set of jurors would result in the greatest advantage during the subsequent trial. Of course, access to this information does not come cheaply, resulting in a large financial barrier to those who wish to have what resembles a fair trial. This in itself raises several problems, especially in a criminal trial setting.

The Right to Effective Counsel

As guaranteed by the 6th Amendment to the Constitution, a criminal defendant in the United States has the right to “Assistance of Counsel for his defence.” This has naturally been interpreted to mean the “right to effective counsel” by the Supreme Court. Unfortunately for many indigent criminal defendants, the cost of obtaining private counsel is vastly out of reach, leaving them to choose between relying on a public defender for trial, or pleading guilty in exchange for a reduced sentence. The majority of the accused do plead out, as is required for our criminal justice system to properly function, in what has been described as a “plea bargain assembly line." However, for those that do try to fight their charges, they are left with overworked defense attorneys, often handling up to a hundred cases at a time. Yet this has not been found to cross the threshold of ineffective counsel, on its own.

Now, add in the fact that an ambitious prosecutor with a vast amount of instantly available information would be able to far more effectively select a favorable jury than a lowly public defender, and one must ask how this system continues to be allowed. Apparently, the answer is that the standard to prove ineffective counsel is absurdly high: both deficient attorney performance and prejudice resulting from that deficient performance that adversely affected the defense must be shown. In other words, since the ability to know every detail about a potential juror is not a traditional aspect of lawyering, not having access to such information does not count against an already deficient public defender, despite the practical effect of dooming the defendant’s trial before it begins.

What Can Be Done?

One possible way to remedy this problem 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. 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 unethical conduct.

Assuming such an organization was to succeed, it would greatly improve the ability of public defenders to effectively defend their clients, possibly resulting in the reduction of plea bargains, which could further push the criminal justice system into reform.

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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


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


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

-- JonathanBonilla - 24 May 2009



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r8 - 24 May 2009 - 01:18:33 - JonathanBonilla
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