Human interaction and socializing was completely transformed in the early 2000s when social media platforms began to gain popularity. In 2005, only 5% of the US adult population used social media, 15 years later that number is now around 80%.(1) Social media has gone from being a commodity to somewhat essential in multiple facets of American life. Most people use Facebook as a reminder of relatives’ and friends’ birthdays, use Twitter to stay up to date on their sports teams, and even LinkedIn has become essential in getting a job or even getting into graduate school. Social media platforms have found a way into nearly every aspect of our life.
These platforms have caused Americans to be quite transparent with complete strangers. Some Americans do not keep their social media accounts private. On the contrary, many seem to enjoy spreading news and information about their lives, their interests, likes/dislikes, values and beliefs via posts and tweets. Before social media, most people did not voice their opinions for the world to see, they were kept private and generally, only those close to them would know this information. Some trial attorneys would go so far to hire investigators to follow some jurors in order to get information and insight into their lives to determine whether or not they would be good jurors for their case.(2)
Before social media, when someone openly voiced their opinion or forced their beliefs or values upon someone it provided a plethora of information about those individuals. For example, if someone picketed an abortion clinic every single weekend, one could likely deduce that the individual was religious, likely conservative, likely votes Republican with strong beliefs against abortion. However, in contemporary times on social media, these opinions are not as robust or accurate. There may be a person who retweets a tweet from President Donald Trump on voter fraud. What does this mean? Does it mean they are pro-Trump? Does it mean they believe in conspiracy theories? Does it mean that they find his tweets to be funny and want to share them with their own followers who may not see Trump’s tweets? Now, what happens if that same person follows Hillary Clinton, Barack Obama, Joe Biden, and Alexandria Ocasio-Cortez? It truly becomes hard to decipher what this information means.
Historically, we have had very few data points on individual Americans. However, with the constant use of social media, we now have tens of thousands of data points on them. Yet, there is a new problem we face. Which data points really matter and which are simply noise that leads to inaccurate and problematic results? Social media has been successfully used to target specific individuals for advertising and sales, but can it be effective in more specific contexts, such as selecting/deselecting jurors for trials? Below we will discuss the pros and cons of social media background research for jury selection and alternative options.
Quick and easy
The main advantage of social media background research for potential jurors is that it is a quick and easy way to get at least some information on the potential jurors in your case.(3) Many jurisdictions do not allow attorneys to know who their jurors are until a day or so before voir dire. This gives the plaintiff team very little time to get data points on the potential jurors. Social media information can provide at least some additional insight on the jurors. Most of the things you will learn, however, will be limited in this time and a majority of the work will go into making sure the John Smith that you are researching is an exact match to the one in your juror pool.
Accurate base information
Social media research can give some accurate results. Most of the information gained from social media research revolves around two things: demographics and religious beliefs. Social media checks can find age, sex, political affiliation, and even jobs relatively easily and accurately. In some cases, it can also give some input into beliefs the potential juror may have, such as pro-life vs pro-choice and being for or against same-sex marriage. However, these beliefs are usually linked heavily to religion and are somewhat accepted beliefs rather than viewed as extreme or taboo, due to the fact that the majority of people tend to comply with social norms. This means that they will not likely post extreme opinions but instead post opinions that match that of their community and friend group. So, individuals from conservative areas may openly post more about negative views of abortion, positive views of gun ownership, and other topics associated with their political or religious views. However, they are very unlikely to post extreme or taboo opinions like 9/11 being a conspiracy theory forwarded by the government or that the far left groups are undercover spies for the Russian government. Yet, this does not mean those individuals are not out there and social media can be beneficial in removing those at the absolute extreme side of opinions.
Most of the time, not always, social media research on potential jurors can be relatively cheap. It should be able to be done quickly and easily and should be a less expensive option for obtaining basic background information. There is a plethora of companies that can give quick insights into individuals if you have their name and address. However, this cheap and quick information will be limited. The information provided can tell you things like their hobbies, shopping trends, and voting preferences, but does not dive deeply into personalities, biases, or beliefs. Additionally, this base information can be gathered internally using your tech-savvy staff. It is quite simple to conduct and should not be something you pay a significant sum of money for.
Jurors expect it
We now live in a time where US adults are used to their social media accounts being used to judge them. When you apply for a job, you can expect your potential employer to review your social media. When you go on a date, expect that person to look you up. Even old classmates or family members you haven’t spoken to in a long time, expect them to use social media to see how you are doing rather than calling. Social media has become ingrained in our society and has become an extension of its users. Researchers have found that a majority of jurors are perfectly fine with attorneys researching their social media accounts. They somewhat expect it. Most do not view it as intrusive or problematic, it is just the norm like the examples listed above.(4)
Can be done in-house
Unlike more advanced research methods into jurors, social media checks can be conducted in house. Nearly everyone knows how to search social media and the most difficult task is perfectly matching the potential juror with the social media account you are researching. This can be more easily done by first finding more open social media sources, such as LinkedIn. Once you have that foundational information, you can match it up to the other social media platforms. Yet, with the recent surge in more advanced privacy settings, neither an outside source nor your own personnel may be able to get any information at all if the jurors are smart about their privacy protections.
The information you gather outside of demographics and some religion-related beliefs becomes quite subjective. Someone may post that they are voting for Trump, but that gives you very little information into those individuals. Simply voting for a candidate does not mean you side with their beliefs. It could mean that they are scared of the repercussions of voting for the other primary candidate. It could mean that Trump matches their religious beliefs and that may be their sole reason for voting for him. This can lead to you and your team focusing too heavily on subjective data points. These are data points that do not definitively make these individuals bad jurors but are instead related heavily to the bias you and your team have about those data points. If you choose to try and remove a juror simply because the person they voted for causes you to stereotype them as a bad juror, you will likely end up with poor results. This can be problematic because there may be someone who could be an extremist with strong biases who has no social media presence or makes it completely private, which is becoming more common.
No social media presence and private social media is becoming the norm now. Social media five years ago was very open and transparent. Facebook provided a plethora of information from articles and posts individuals shared openly. Twitter provided short thoughts about topics along with retweets for people who had inputs that the user found worth sharing. Instagram could give you photographic evidence of jurors having confederate flags or pictures with controversial figures. Yet, the recent boom of privacy issues has led to a majority of social media users increasing their privacy settings or even completely abandoning social media. This results in sporadic and less accurate results from these types of analyses. Additionally, those with extreme views will likely not post on their own private social media and instead may post on an alternate account that is anonymous. These privacy deviations between jurors cause a major issue when it comes to social media data. If you have 50 jurors and only 25 of them have public social media accounts that you can data mine from, then you create an uneven playing field for your juror pool. You will have a biased view of the 25 with public social media accounts while the other 25 will have a clean slate.
Some courts may not approve of the tactic
Unlike with alternatives, some judges and courts view the research of juror’s social media to be unethical. This is seemingly becoming less and less common as social media becomes more prominent and widespread. It is important to be transparent with the court about this tactic because if they do find it to be unethical or too intrusive, your supporting information for cause will be damaged. Some jurisdictions may even inform the jurors that their social media will be used to gather information about them, which can lead to enhanced privacy options and possibly an inability to gather any information at all. Transparency with the court is the ethical route but it can lead to limitations in the research. (5)
Weak and messy data
From a statistical standpoint, social media data is simply weak. Just like background data, it is the most rudimentary form of data. It is a great starting point for gaining information but is never something you should solely use to make decisions. Using only social media is the equivalent of judging a book by its cover. Not everyone portrays themselves on social media as they actually are in real life. A much deeper dive is needed for this data to really matter. It can provide a beginning foundation, but in no way should be the focal point of your jury selection choices. Unfortunately, social media data is also extremely messy. This means that the data is not straight-forward and can not be easily categorized or given a value. For example, if someone replies to a post by saying “That is great.” it can be interpreted as either they are in support of the post or sarcastically replying to the post. The major issue with messy data like this is that it cannot easily be organized and analyzed by automations or AI. These techniques and algorithms will likely misinterpret a majority of linguistics because of their inability to understand sarcasm, irony, and satire. This means that the data must be manually checked making accurate results more costly and time consuming. It is extremely difficult to sift through and get the most of social media data without diving into advanced analytics that can take quite a bit of time, which negates the quick and easy pro of this method. (6)
Your main takeaway from this article is that you should not put substantial resources into social media data when alternative methods can be more robust. (7) This data gives you very little insight into potential jurors and can be troublesome for a multitude of reasons. (8) Social media data is in no way worthless, but it is often weak, and accurate social media predictions are very difficult to gather effectively. If you want to do social media background research, you should do a majority of it in-house and put your resources into other, more scientific approaches.
A more robust alternative to social media research is developing a supplemental juror questionnaire (SJQ) or even getting a recommended one from the court that may be more easily approved and adjusting it to fit your needs. The current health crisis has made courts far more lenient with the use of SJQs. They can filter out potential jurors earlier meaning that fewer people will have to show up to court in-person, which is something that is very beneficial to the courts. These SJQs can contain a number of questions that can help you better understand the jurors you will be talking to. When an SJQ is paired with pretrial quantitative research, you can actually measure jurors against the scientifically-proven predictors of bad jurors. With this information, you can know which jurors are problematic and detrimental to your case and focus your time on removing them. Jury Analyst can help you and your firm with both the pretrial quantitative and qualitative research as well as the development of robust supplemental juror questionnaires that are tailored to your specific case and jurisdiction. With data-driven information, you will no longer need social media information on your jurors because you will be able to access higher quality data on the jurors in your pool.