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Judge's ruling gives prospective jurors some protection from online scrutiny

| Saturday, July 16, 2016, 8:24 p.m.

SAN FRANCISCO — Mining prospective jurors' Facebook, Twitter and other social media accounts is common practice for many attorneys looking to spot biases that might cost their clients a fair trial.

The American Bar Association has said the searches are ethical, and a ruling by the Missouri Supreme Court bolstered arguments that attorneys have a duty to do online research of prospective jurors. Still, some judges have deemed the online searches invasive and banned them.

Now, a federal judge's ruling in a copyright battle between Silicon Valley heavyweights Oracle and Google has reignited debate about the practice while offering a potential middle ground.

U.S. District Judge William Alsup, raising concerns about prospective jurors' privacy, said attorneys could research the jury panel, but would have to inform it in advance of the scope of the online sleuthing and give the potential jurors a chance to change online privacy settings.

Otherwise, they had to agree to forgo the searches.

Alsup said prospective jurors are not “celebrities or public figures ... but good citizens commuting from all over our district, willing to serve our country.”

“Their privacy matters,” the judge said in March.

Attorneys for Google and Oracle agreed to do without the searches.

The ruling prompted a fresh wave of discussion in legal circles about how aggressively attorneys should be allowed to investigate jurors' online personas and how beneficial the searches are.

“What Judge Alsup has done is truly unique,” said Thaddeus Hoffmeister, a professor at the University of Dayton School of Law who studies the impact of social media on the legal system. “This may be a route other judges suggest going forward.”

Prosecutors in a recent criminal case accusing FedEx of drug trafficking requested that a judge issue the same ultimatum as Alsup. FedEx objected, and the issue became moot after the judge, not a jury, heard the case. All charges were dismissed against the shipping giant in June.

“We as a society want the attorneys and litigants to know enough about these people so they can legitimately get rid of those who know about the case or have a bias,” said Greg Hurley, a lawyer who studies juries at the National Center for State Courts. “On the other hand, we don't want people digging into the jurors' private lives.”

The American Bar Association in 2014 said lawyers cannot try to get additional information by “friending” or otherwise requesting access to a site from the juror.

Prospective jurors aren't always forthright when questioned by attorneys during the traditional juror vetting process, so checking their social media sites can help spot inconsistencies, said Jeffrey Frederick, a jury consultant at the National Legal Research Group Inc., a Virginia-based legal services firm.

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