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In the lawsuit(s) between Epic and Apple, assuming it ends up in front of a (federal) jury, are the lawyers for each side allowed to ask potential jurors whether they have iPhones or Android phones; and, on the other side, are they allowed to ask potential jurors if they play, or have played, or are related to someone who plays or has played, Fortnite (the game made by Epic that Apple removed, leading to the lawsuit)?

If they are allowed to ask, are they allowed to strike jurors using their peremptory challenges, or could it be considered a 'for cause' strike? Or would Batson or other reasoning prevent such a strike, even as a peremptory challenge?

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Sep 30 '20 at 5:11
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The question of whether they can ask these questions will be left to the trial judge. If the parties can make any kind of reasonable argument that consumers of one product or the other are likely to be partisans, the judge should allow the question, though it would not be error to refuse.

For a good comparison, look at Ham v. South Carolina, 409 U.S. 524, 525–29 (1973). There, the defendant argued he was framed for a petty drug charge because of his involvement in the Civil Rights movement. He thought jurors might be prejudiced against him because he was black and because he had a beard, but the trial court refused to let him ask jurors about either possibility. The Supreme Court said it was an error to refuse to ask the questions about race, but not about the beard:

The inquiry as to racial prejudice derives its constitutional stature from the firmly established precedent of Aldridge and the numerous state cases upon which it relied, and from a principal purpose as well as from the language of those who adopted the Fourteenth Amendment. The trial judge's refusal to inquire as to particular bias against beards, after his inquiries as to bias in general, does not reach the level of a constitutional violation.

Assuming the question is permitted, the mere fact of using an iPhone would not be sufficient to obtain a "for cause" strike, which the court will only grant if the juror does not indicate that he would be able to fairly consider the case. "I like my iPhone" is not enough. "I like iPhones better than Android" is not enough. "I hate Google" is not enough. "I worship at the altar of Steve Jobs" is not enough.

Instead, the question will be whether a juror indicates that they can set aside whatever prejudices they might have. The court is not required to strike them "as long as he or she ultimately asserts an ability to be fair and impartial." United States of America v. Abel Martinez-Salazar, 146 F.3d 653, 659 (9th Cir. 1998).

Batson prohibits peremptory strike based on "gender, ethnic origin, or race." United States v. Martinez-Salazar, 528 U.S. 304, 315 (2000). Other than that, a lawyer is generally free to strike based on anything or nothing at all (though there remain some questions about whether Batson also applies to other protected classes, such as sexual orientation, disability, age, etc.). So peremptory strikes would be the only permissible means of eliminating iPhone users from the jury.

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Sep 30 '20 at 5:11
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If they are allowed to ask, are they allowed to strike jurors using their peremptory challenges, or could it be considered a 'for cause' strike?

This makes it sound like parties cannot use a peremptory challenge if cause exists. They are free to do so, but doing so is poor strategy.

In many jurisdictions, parties can ask questions in voir dire only for the purpose of discovering bias or other basis of unsuitability. They cannot ask questions for the purpose of acquiring information on which to make decisions regarding their use of peremptory challenges, although, having acquired information while inquiring about bias, they can use that information for peremptory challenge, as long as it doesn't involve protected classes such as race. Cell phone use has not been recognized as a protected class.

An example of this principle being articulated:

a trial court need not ask a voir dire question that is ‘not directed at a specific [cause] for disqualification [or is] merely ‘fishing’ for information to assist in the exercise of peremptory challenges https://mcdaa.org/images/downloads/Resource_Misc/voir_dire.pdf

This was based on Maryland law, so it may not apply in a federal court.

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