Jury selection that began on Oct. 18, 2021, in the trial of three men accused of murdering unarmed Black jogger Ahmaud Arbery has been, according to an NPR report, a “very painstaking process.” That’s because it’s been hard to find jurors who have not been exposed to media reports of Arbery’s death or a graphic video of his killing taken by one of the defendants. And that, it is feared, could bias them either for or against the defendants.
Lawyers on both sides of the Arbery case aren’t the only ones grappling with the problem of finding unbiased jurors in the age of social media.
The U.S. Supreme Court heard oral argument on Oct. 13, 2021, in the case of Dzokhar Tsarnaev, the lone surviving Boston Marathon bomber. While much of the news coverage has focused on whether the court will uphold the death penalty for Tsarnaev, the case also presents a fundamental question for this era: Is it possible to find unbiased citizens to serve on a jury in high-profile cases during an age of ubiquitous social media?
This aspect of the case focuses on the “voir dire” process, which employs a French term that roughly translates to “speak the truth.” Voir dire occurs before the start of trial, when lawyers or the judge, depending on the jurisdiction, question prospective jurors to determine whether they harbor any kind of bias or prejudice against one of the parties.
Tsarnaev was charged with 30 counts related to the bombing of the marathon. The case had received widespread attention, including online commentary about the defendant and pictures of him carrying a bomb-laden backpack to the finish line. Voir dire in his case was extensive, lasting 21 days and involving 1,373 prospective jurors, each of whom completed a 28-page questionnaire.
At some point during voir dire, Tsarnaev’s attorney wanted the judge to ask a two-part question to prospective jurors. First, whether they had seen media coverage of the case, and second, what specifically they had seen. The judge asked the first part of the question, but not the second.
‘Does not suffice’
Tsarnaev’s lawyers appealed the death penalty, saying in part that the trial judge should have asked what media coverage jurors had seen or read about the case to ensure a fair jury.
The First Circuit Court of Appeals found fault with the judge, saying that asking the jurors “only whether they had read anything that might influence their opinion’ does not suffice,” because that sole question does not elicit “what, if anything, they have learned.” During the oral argument at the Supreme Court, Justice Sonia Sotomayor noted that “there was a whole lot of different publicity here.”
Since this appeal relates only to the death penalty sentence, Tsarnaev’s guilty verdict and life sentence without parole remain in place.
The dilemma facing the Supreme Court is how prescriptive they want the voir dire process to be. It could issue an opinion requiring lower courts to ask jurors more penetrating questions about their exposure to media accounts in high-profile cases.
Some believe that trial judges should be given a measure of flexibility and autonomy in how they conduct voir dire. Others want the Supreme Court to step in and spell out exactly how voir dire should be conducted.
Those favoring this latter approach point out that Tsarnaev was facing a death sentence and made four requests for a change of venue to move the case from Boston because, his lawyers argued, it would be impossible to get unbiased jurors in the local area. As a scholar of criminal law and juries, I believe a strong argument could be made that any trial judge in this situation should take additional steps to uncover bias in prospective jurors.
Those on the other side believe that requiring more questions will unduly lengthen the voir dire process and encroach on juror privacy. Despite these misgivings, courts around the country are increasingly questioning jurors about such topics as social media and their use of the internet.
Can’t unplug a juror
The issue confronting the Supreme Court here is part of a larger discussion about whether courts in the digital age can find objective jurors.
Finding unbiased jurors in the pre-digital age, even in high-profile cases, was not too difficult. Once chosen, jurors needed to maintain that unbiased status and were told not to discuss the case with anyone and to avoid radio, television and newspapers. If the case involved the death penalty, jurors might be sequestered.
Today, that same approach won’t work.
Few jurors can go eight hours, much less a whole week, without using their smartphone or social media. Many people share aspects of their life with others in real time through social media, which is incompatible with jury service. In fact, being a juror makes their social media posts more interesting to others.
In Tsarnaev’s case, the court of appeals’ opinion referenced juror #138, who had a running dialogue about the case on Facebook with his friends.
Today’s jurors also have much more information available to them. Where news stories about a crime or the defendant would have been difficult to discover or access previously, they are now just a click away. This information does not disappear when out of the news cycle; it remains online and accessible. In fact, often the information is pushed to the juror or shows up in their news feed.
Dealing with the connected juror
Judges across the country take a variety of approaches to combat the negative influences of the digital age on the jury.
Attorneys and judges will ask potential jurors questions. In addition, attorneys will investigate jurors to learn what they know about the case. This happens both in the courtroom at voir dire and online, where attorneys research the juror’s digital footprint to include social media posts. The question of how far to pry during voir dire is the main issue of concern in Tsarnaev’s case.
Once chosen, jurors are told to follow the court’s instructions, but the lure of social media can be all too tempting. Thus, courts impose penalties on jurors who are unable to follow the rules on seeking out information or discussing the case.
These penalties include holding jurors in contempt of court, taking their devices or imposing sequestration, in which jurors are put up in hotels away from their family and devices. The common theme with all penalties is that once imposed, they make citizens less inclined to want to serve as jurors.
Some legal experts believe that if jurors are given sufficient information about the case, they will be less inclined to violate court rules and go online to look for information or discuss the case. One way to improve the appropriate flow of information to jurors is to allow them to ask questions during trial.
Finally, there are calls to change jury instructions to fit the modern times. Since today’s jurors are so receptive to learning information online, they have to be told why practices that they regularly use are prohibited while on jury duty.
The jury, throughout its approximately 400-year history in America, has witnessed many changes in society. Through each one, the jury has adapted and survived. Thus, I believe it is highly likely the jury will weather the storm of the digital age.
This is an updated version of an article originally published on Oct. 15, 2021.
A Disturbing Timeline Of Ahmaud Arbery's Killing And Murder Investigation In Georgia
1. October 20191 of 43
2. November 2019
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This video is from 11/17. Larry English called 911 on 11/18 and said he had a problem with "other people" the night before. This appears to show that day and is from English's attorney. There is no record of neighbors calling 911 this day, based off records from Glynn Co 911 pic.twitter.com/BXlyYEaBcL— Wright Gazaway (@WrightKATU) May 15, 2020
3. Dec. 20, 2019
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Police told the homeowner where #AhmaudArbery was last seen to contact Greg McMichael if his cameras caught someone on his property. McMichael in turn gathered a posse & began hunting for Ahmaud, or someone who fit his description, catching up with him on 2/23/20– killing him. pic.twitter.com/BmlmW636f5— Lee Merritt (@MerrittForTexas) May 16, 2020
4. Dec. 20, 2019
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This is the man that set the plan in motion that led to the murder of #AhmaudArbery.— Lee Merritt (@MerrittForTexas) May 18, 2020
ROBERT RASH is a Glynn County Police Officer.
He instructed a homeowner to contact Gregory McMichael to deal w/ trespassers.
McMichael and his son formed a posse and murdered Ahmaud Arbery. pic.twitter.com/ZqZg567Agp
5. Feb. 11, 2020
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Larry English’s attorney gave me this video from Feb 11. It shows the incident outlined in my story when Travis McMichael called 911 and saw someone in the home. On 2/23, he and his father thought the Abrery was who they saw on the 11th pic.twitter.com/C2gVJCJ3xQ— Wright Gazaway (@WrightKATU) May 14, 2020
6. Feb. 23Source:Getty 6 of 43
7. Feb. 27, 2020
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This is the DA who blocked the arrest of 2 white supremacist TERRORISTS after they murdered an innocent black man execution style while he was jogging in his neighborhood— StanceGrounded (@_SJPeace_) May 9, 2020
JACKIE JOHNSON NEEDS TO BE HELD ACCOUNTABLE FOR OBSTRUCTING & ENDANGERING THE LIVES OF BLACK MEN
ARREST HER pic.twitter.com/ngSIEGMCq1
8. Feb. 27, 20208 of 43
9. Feb. 29, 2020Source:Getty 9 of 43
10. March 2020
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If you’re wondering why no charges were initially filed on the murderers of #AhmaudArbery, it’s because D.A. George Barnhill immediately concluded Arbery was a criminal & that he attacked the men who were hunting him.— Benjamin Dixon (@BenjaminPDixon) May 7, 2020
This is letter Barnhill sent to the Brunswick authorities pic.twitter.com/vsGCboful7
11. April 2, 2020
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Police report sheds more light on Satilla Shores shooting https://t.co/Zi6YVGTkhK— The Brunswick News (@Brunswick_News) April 2, 2020
12. April 3, 202012 of 43
13. April 1313 of 43
14. April 26, 2020
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We’ll never know how often Black life is taken, justice denied:— Dr. Malinda S. Smith (@MalindaSmith) May 9, 2020
“Two Weapons, a Chase, a Killing and No Charges.
A 25-year-old man running through a Georgia neighborhood ended up dead. A prosecutor argued that the pursuers should not be arrested” @nytimes https://t.co/pJA6kSK6cj
15. April 28, 202015 of 43
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18. May 7, 202018 of 43
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20. May 8, 2020
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On what would have been his 26th birthday, people were jogging 2.23 miles in his honor to signify the date he was killed by Gregory and Travis McMichael, who racially profiled and shot the jogger in Brunswick, Georgia. #IrunwithMaud #IRunwithAhmaudhttps://t.co/V2KuBaeKjx— NewsOne (@newsone) May 9, 2020
21. May 9, 2020Source:Getty 21 of 43
22. May 10, 202022 of 43
23. May 11, 2020
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Another huge WIN for #JusticeForAhmaud! At the family’s demand— a special prosecutor will replace Tom Durden the S. GA prosecutor that sat on the case until video of Ahmaud’s murder was leaked. Joyette Holmes is out of @cobbcountygovt. Her office is being reviewed for conflicts. pic.twitter.com/rcuQ7UPOfE— Lee Merritt (@MerrittForTexas) May 11, 2020
24. May 12, 2020Source:Twitter 24 of 43
25. May 13, 2020
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“Ahmaud, I am so sorry. I should have stopped them,” reads the note. “I am so sorry.” The card was not signed by a name and no more information or context was provided, including when the card was left there. https://t.co/nzzY5aNple— NewsOne (@newsone) May 14, 2020
26. May 14, 2020Source:Getty 26 of 43
27. May 18, 2020
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Because this story wasn't bad enough now we discover Lindsay McMichael, the daughter and sister of Ahmaud Arbery’s alleged killers, posted a picture of Ahmaud’s deceased body to snapchat pic.twitter.com/RwTwzrAXAG— Reese Waters (@reesewaters) May 19, 2020
28. May 18, 202028 of 43
29. May 20, 2020Source:Getty 29 of 43
30. May 20, 2020
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Today, the GA Congressional Delegation co-signed a letter to U.S. AG William Barr and Asst AG Eric Dreiband, encouraging the use of “all possible Federal resources to achieve full justice, transparency, and accountability in the case of Mr. Ahmaud Arbery.” https://t.co/8FcMZEEKWF— John Lewis (@repjohnlewis) May 20, 2020
31. May 21, 2020Source:WJAX 31 of 43
32. May 25, 2020
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NEW: Attorneys for Ahmaud Arbery's parents announce that the Department of Justice will be investigating Arbery's killing and why it took so long to arrest the people responsible. See their statement here: pic.twitter.com/yfcnrT5SjV— Hayley Mason (@HayleyMasonTV) May 26, 2020
33. June 2020
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Reports of a photo op with the president or standing with the White House during the EO signing are false.— Lee Merritt (@MerrittForTexas) June 16, 2020
Show me the civil rights leaders who are upset about families making a direct appeal for federal intervention after the murder of their loved one & I’ll show you a clown. pic.twitter.com/GXR5arB8Mz
34. June 17, 2020Source:WJAX 34 of 43
35. November 2020Source:Getty 35 of 43
36. December 2020
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William ‘Roddie’ Bryan tried to publicly absolve himself of having any part in Ahmaud Arbery’s modern-day lynching, but this newly released bodycam footage confirms what we long suspected: He clearly used his truck to block Ahmaud's escape from the McMichaels! pic.twitter.com/UAms4LYS28— Ben Crump (@AttorneyCrump) December 15, 2020
37. January 2021Source:Getty 37 of 43
38. February 2021Source:Getty 38 of 43
39. Feb. 23, 2021Source:Getty 39 of 43
40. April 2021Source:Getty 40 of 43
41. May 2021Source:Getty 41 of 43
42. September 2021
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This is the mugshot of disgraced District Attorney Jackie Johnson who was just arrested today for her role in the coverup of the murder of Ahmaud Arbery. pic.twitter.com/OKF2xKkV3Z— Lee Merritt (@MerrittForTexas) September 8, 2021