Private Eyes Are Watching You…And Jurors Know It

These days privacy, or what’s left of it, seems to be all over the news.  Target recently paid out $10 million to settle a class action lawsuit stemming from a data security breach that caused the theft of customers’ financial and personal data.

Many people don’t know, or want to know, that companies collect and sell our demographic information, search tendencies and purchase histories to other companies.  In fact, Radio Shack announced it will sell its customer information as part of its bankruptcy proceedings. 

So how does all of this privacy talk relate to the courtroom?  Well, depending on the type of case, juror perceptions of privacy, and whether it is dead as we know it or worth protecting at all costs, can make a significant difference in how case facts, and certain evidence, are weighed. 

For example, surveillance footage of a plaintiff in a personal injury case can play very differently just by virtue of where the trial is held.  We have found jurors in some jurisdictions don’t have high expectations for privacy and generally believe it is “fair game” to film claimants in a lawsuit.  However, jurors in other trial venues are easily offended by the idea of a private investigator following plaintiffs around, filming without their knowledge, and shut out this evidence. 

Conventional wisdom states that jurors in large, urban city centers – who are more accustomed to seeing cameras in their daily lives (street corners, stoplights, grocery stores, etc.) – would tend to be less protective of privacy and more accepting of surveillance footage in a lawsuit.  Although logical, we have found this is not always true.  Depending on the unique demographic, socioeconomic and political makeup of that city center, jurors can become quite incensed by the perceived invasion of privacy and dismiss this surveillance evidence out of hand – regardless of how incriminating.

The same goes for showing jurors a plaintiff’s Facebook, Twitter or other social media postings at trial.  We have found that in certain jurisdictions there is outward hostility toward using an individual’s “digital footprint” against them in trial, and instead jurors share perceptions this information should be strictly “off limits” – prompting the trial team to find softer, more creative avenues for introducing this information.

We used to believe younger jurors – who tend to be more connected through social media and seemingly more accepting of the value proposition of losing a bit of privacy in order to gain a lot of convenience – would not have a problem with using this kind of evidence at trial.  However, we have observed that younger people can actually be the most offended by these practices – depending on who is doing the digging and why.

This speaks to the importance of understanding your jurisdiction and jurors and their unique mindsets and the environmental and social factors that contribute.  Whether by using community surveys, online research or live focus groups, we have found it crucial to test these issues and evidence before trial starts, to ensure what we think of as “slam dunk” evidence doesn’t get swatted away at the hoop due to moral qualms with the type and source of the evidence. 

If you are interested in getting juror feedback on an upcoming case, or particular pieces of evidence (the evidence itself, or even how it was obtained), please contact us at cluna@juryimpact.net or 714.754.1010 so we can discuss the best method for your goals.