This newsletter is the first installment in a series addressing the issues associated with the use of social media and the Internet in the legal setting. Part I of this series explains how an attorney can advantageously use social media and other online sources in preparing for jury selection.

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After the court read the third and final “not guilty,” everybody under the sun has been wild over the Casey Anthony verdict. Whether you agree with the verdict or not, we hope that you find this month’s newsletter insightful and educational. Below are some of the key issues we wanted to address in light of discussions we have had here at TrialTech, as well as with our friends and colleagues regarding the Casey Anthony trial.

As a trial consultant, legal psychologist and professor, I had the unique experience of serving on a jury in a civil case. At issue was the plaintiff’s inability to collect payment from the defendant insurance company for treatment allegedly administered as the result of an automobile accident. The amount due was $6,000. The trial lasted two days. Witnesses for both sides included insurance claim adjusters, two attending physicians, the individual involved in the car accident, the rehabilitation center accounting clerk, and a chiropractor. At the completion of the case we had a single question before us: “Should the insurance company pay the plaintiff [rehabilitation center] for services rendered to the individual involved in the automobile accident which were reasonable, necessary, and a direct result of the accident.”

Holiday greetings from TrialTech

Most trial attorneys are well aware that panel members often do not provide the most complete or accurate pictures of their case-relevant attitudes and life experiences during voir dire. This may simply be the byproduct of shyness or practical matters such as time constraints imposed by the court, but could also be the result of a direct attempt by the venire member to conceal or distort some unfavorable attitude or affiliation. As such, attorneys and trial consultants have consistently sought other means to learn about jurors beyond questionnaires and voir dire. One such method involves internet searches on the venire. In today’s web-based society, many people have accounts on popular social networking sites such as MySpace or Facebook.

In State v. Cooke (2007), the Delaware Supreme Court examined the CSI Effect. The defendant filed a series of motions to exclude ten pieces of prosecution forensic evidence, arguing that tests for each piece of evidence were either inconclusive or exculpatory, and he challenged their relevance. Noting widespread media coverage of criminal trials and the prevalence of forensic-based TV shows, the prosecution argued that it needed to produce enough evidence to address jurors’ heightened expectations for a thorough criminal investigation. The court noted that the prosecution was in a “Catch 22” conundrum, in that it could be criticized for either proffering too much irrelevant evidence or not presenting enough evidence, as the court had witnessed first-hand defendants taking advantage of absent prosecution evidence. In the end, the court found little harm in allowing the prosecution’s presentation of inconclusive evidence.