Many New Mexicans were surprised Wednesday to read that the prosecution in the Carlos Fierro vehicular homicide trial did criminal background checks on potential jurors in the closely watched case — and didn't share the information with the defense team.

In the age of Google, Facebook, searchable newspaper archives and computerized criminal record databases, background checks on jurors are becoming increasingly common in courts nationwide.

Bob Kelley, who writes a jury blog from Fort Lauderdale, said in Florida, "It's done routinely in virtually every trial."

In fact, on Wednesday, he said, he had attended a proceeding in which a convicted felon was disqualified following a background check. It's part of the selection process, he said. "There are people who stay up all night doing this. You'd be crazy not to."

Boston prosecutors conduct criminal background checks on all jurors in homicide cases. This has been standard practice since a 2004 child murder case ended in a mistrial after it was revealed that a number of jurors lied about their criminal records on their questionnaires.

The Massachusetts Supreme Judicial Court later ruled that background checks were the proper exercise of authority for prosecutors — and the trial is now proceeding.

"One likes to think jurors are being truthful in their responses on jury questionnaires," said Jake Wark, press secretary for the Suffolk County District Attorney's Office in New York. "But that's not always the case. If they are intentionally withholding past criminal activity, that begs the question of whether they can be fair or impartial."

Jury background checks are also common in high-profile cases in New Mexico, according to Gary Mitchell, a prominent death penalty attorney from Ruidoso. Mitchell said he routinely files motions requesting that criminal background information obtained by the prosecution be shared with the defense, and "I've been successful every time."

Prosecutors typically use state Web sites — similar to nmcourts.gov — that contain arrest and convictions records for defendants in state courts. In Boston, Wark said, the prosecutor uses the database of the Massachusetts Board of Probation. That site is also available to lawyers, employers and the media, although law enforcement agencies have speedier access to the data, he said.

What's different in the Fierro case is that District Attorney Angela "Spence" Pacheco used a law-enforcement database called the National Crime Information Center. Information from it is not available to the defense without the court's permission.

Mitchell said there are serious questions about whether the state should even utilize the database, but not sharing the information with the defense is a violation of the state's discovery rules of evidence. "If they get it, they have to share it. Most good ethical lawyers, for the prosecution and the defense, share that information," he said.

And if the data is not forthcoming, Mitchell said, "I can look and watch (during jury selection). I know when they are working off of additional information."

Referring to defense council Robert Gorence, who filed a motion seeking a mistrial in the Fierro case on the basis of prosecutorial misconduct, he said, "Gorence has a legitimate issue and a very meritorious argument."

John Day, a defense attorney, said when he was a prosecutor in Taos he was under instructions that the information in the NCIC was classified. Moreover, he said, it contains a lot of information that's incorrect, and "that should be a concern."

Not sharing the information, however, can lead to an "unfair panel," he said.

"Jury selection is supposed to be an open process in which everyone has the same chance to strike or keep (a juror.) This tips the scales unfairly toward the prosecution."

Day also believes any advantage gained for access to NCIC could be "overcome with good trial skills."

Philip Anthony, a Los Angeles trial consultant, warned that using a largely proprietary database system to investigate jurors could have a chilling effect on the process. "It strikes me that if this became standard practice, you would do great damage to the willingness of most citizens to participate in jury duty. It's almost like submitting yourself to an IRS audit."

Nevertheless, courts have mostly approved the use of background checks.

Although a federal judge in Illinois barred prosecutors from conducting background checks of prospective jurors in a corruption trial involving former high-ranking Chicago officials (U.S. v. Sorich), saying they could have "coercive effect," prosecutorial access to such records has mostly been upheld.

A Virginia Court of Appeals case (Salmon v. Commonwealth of Virginia) found that it isn't unfair for the prosecution to conduct the checks and withhold the information from the defense. But cases originating in other states such as New Hampshire, Iowa and Indiana require the information to be shared. And the American Bar Association in its "Principles for Juries and Jury Trials" recommends that if a party is going to conduct background checks, the information should be provided to the other side.

Wark says in Massachusetts, the district attorney believes the practice is effective. Although most people are just trying to do their civic duty, there's a lot of evidence that jurors withhold facts or outright lie on jury questionnaires, providing grounds for appeal. Mitchell, who's had former clients deny they know him, suggested, "Most jurors don't want to tell about their problems in life, and many won't disclose medical or psychiatric history" on jury questionnaires.

But sometimes they might be "rogue jurors," hoping to get on the panel to influence the verdict. Local jury consultant Eda Gordan recalled that one of the cases growing out of the 1980 riot at the state penitentiary could have benefited from a background check. She didn't learn until after the case ended in a mistrial that the youngest juror was dating the warden's daughter and socialized with many of the prison guards.

Contact Anne Constable at 986-3022 or aconstable@sfnewmexican.com.