Harvey Weinstein jury selection: bias, big data and ‘like’

(Reuters) – When lawyers at the Harvey Weinstein rape trial questioned potential jurors on Thursday, they may already know who used the #MeToo hashtag on Twitter or criticized victims of sexual harassment in a Facebook discussion.

FILE PHOTO: Harvey Weinstein leaves the New York Criminal Court after his trial for sexual assault in Manhattan, New York, on January 7. REUTERS / Eduardo Munoz

The intersection of big data capabilities and the prevalence of social networks has transformed the jury research business in the United States, which once meant obtaining information about possible jurors of car bumper decals or The appearance of a home.

Now, consultants go through Facebook, Twitter, Reddit and other social media platforms for comments or “likes” difficult to find in discussion groups or even selfies of a juror wearing a potentially biased shirt.

“This is a completely new generation of information we had in the past,” said Jeffrey Frederick, director of Jury Research Services at the National Legal Research Group Inc.

The techniques seem tailored for Weinstein’s trial, which has become a focal point for #MeToo, the social media movement that has exposed the inappropriate sexual behavior of powerful men in business, politics and entertainment.

Weinstein, 67, pleaded not guilty to the charges of assaulting two women. The movie producer, once powerful, faces life imprisonment if convicted of the most serious charge, predatory sexual assault.

On Thursday, legal teams will begin questioning potential jurors, a process known as voir dire. More than 100 people passed an initial evaluation and the identities of many of those people are known publicly for days, allowing extensive background research.

Mark Geragos, a defense lawyer, said it is almost negligence to ignore the jury’s online activity, particularly in high profile cases.

When Geragos was representing Scott Peterson, who was later convicted of the murder in 2002 of his pregnant wife Laci, it came to light that a woman told an Internet chat room that she had cheated both legal teams to be part of the California jury.

“You never know if someone is telling the truth,” Geragos said.

Weinstein’s lawyer, Donna Rotunno, told Reuters recently that her team was considering hiring a firm to investigate the use of jury social networks to eliminate bias.

The Manhattan district attorney’s office does not use jury consultants and office spokesman Danny Frost declined to comment if prosecutors were reviewing the social networks of potential jurors.

Frederick’s firm, which has not been involved in Weinstein’s case, creates huge online activity databases relevant to a case, deepening interactions that do not appear in a user’s social media timeline. His firm reviews Facebook news articles on a particular case or topic, cataloging each comment, response, sharing, as well as emojis or “likes”, with the hope that some have been published by a potential juror.

“The aspect of social networks can be a great help in observing people’s political motives,” said defense attorney Michael Bachner. He said the Weinstein team will probably want to know about a potential jury’s ties to women’s causes, with “#MeToo is the obvious one.”

The consultants only use public information and focus on those with extremist views, said Roy Futterman of the DOAR consultancy.

“You are looking for the worst juror,” he said.

Julieanne Himelstein, a former federal prosecutor, said the best investigative tool remains the questioning of a lawyer about a possible juror in the courtroom.

“That surpasses all the sophisticated intelligence that anyone can do,” Himelstein said.

But trial veterans said potential jurors are reluctant to admit unpopular views during voir dire, such as skepticism about sexual harassment in the workplace.

During the interrogation in a trial involving a pharmaceutical company, consultant Christina Marinakis reminded a potential juror who said she had no negative feelings towards pharmaceutical companies.

“We discovered that he had a blog in which he was focusing on capitalism and especially American and pharmaceutical companies,” said Marinakis, research director of the Litigation Insights jury. The jury was dismissed.

Marinakis said the blog was written with a username, and only came to light when searching the jury’s social networks for references to pseudonyms.

Lawyers can reject an unlimited number of potential jurors if they show bias. In general, each party can use “peremptory” challenges to eliminate up to three potential jurors who believe they will be unfriendly, without giving a reason.

In a Canadian civil trial, the consulting firm of the jury Vijilent discovered that a possible juror who appeared to be a mother who stayed at home without a history of social activism, had in fact been arrested three times for civil disobedience while promoting the causes of the indigenous peoples. .

“Unless he enters his social networks, he would not have known that information,” said the founder of Vijilent, Rosanna García.

Tom Hals Report; additional reports by Brendan Pierson and Gabriella Borter in New York; Noeleen Walder and Rosalba O’Brien edition

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