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August 14, 2012

By: Joel Cohen

Full disclosure: One, the author nearly electrocutes himself whenever he turns on his computer. Two, he will disdainfully ask anyone who will listen-especially students, who are somewhat of a captive audience: "Why in the world would you have an account on Facebook (or any social media site) given the privacy risks that you will invariably encounter?" Three, he began practicing law at a time when jury voir dire, particularly in criminal cases, was altogether different than it is now. 

In those days, trial attorneys were actually able, both under law and practice, to question jurors themselves. When they did so, they could look the jurors in the eye and see who (or what) was looking back. Trial attorneys were amateur shrinks who could, in at least their own minds, learn from a juror's obfuscations or basic body language, whether he might be helpful or a death knell to their client and his cause. Judges didn't simply ask plain vanilla, unpenetrating questions without meaningful follow-up. No elaborate jury questionnaires. No jury consultants. And most important, no Internet searches. It was pure, "I myself will make the decision on whether to strike a juror based on my (experienced) gut instinct." There-you have the mind-set.

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