Be Careful Using Social Media For Jury Research

Social media is a goldmine for digging up data on practically anyone in the world.

You can find out about their friends, family and favorite foods. You can download cute pictures of their pets. You can learn what church they attend and what charities they contribute to.

You might even be able to discover their views on issues like capital punishment and tort reform.

All of which could come in handy when investigating and questioning potential jurors.

Some legal professionals – judge and litigators alike – are all for online jury research. They believe the more you know about jurors, the more likely justice will be served. Here is what the judge in the Scooter Libby trial says about it:

 “For years the practice of law has relied heavily on stereotypes during jury selection. Data is published left and right discussing whether married mothers are better jurors than single women for cases against corporations, or whether men over 50 are good picks for a jury trial about Social Security fraud. There is tremendous potential with juror research to step away from classifying individuals by these subcategories. Instead, an attorney can look at a blog and say, juror 12 seems compassionate or juror 15 seems financially savvy. The characteristics of the jurors are determined by their actions online, and not by their membership in a certain classification.”

Others think it is a terrible idea. They worry about tainted juries, courtroom circuses and lawyers skulking around Snapchat in an unseemly manner, according to one writer.

ABA Formal Opinion 466

Regardless of your opinion on the issue, you should exercise caution before turning to Facebook or Twitter for juror research. Otherwise, you might find yourself in ethical hot water.

American Bar Association Formal Opinion 466 attempts to lay down some guidelines in this regard. In general, the opinion says it is okay for a lawyer to review a juror’s (or potential juror’s) online presence and postings before and during trial. But you can’t communicate directly with a juror via social media, nor can you do it indirectly through an intermediary.

To that extent, the opinion is consistent with what North Carolina has had to say about juror contact. It goes further, though, by positing three different scenarios:

• Passive review of a juror’s website or electronic social media that is available without making an access request – and where the juror is unaware that you are lurking – is okay. This, the opinion says, is like “driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury-selection decisions. The mere act of observing that which is open to the public would not constitute a communicative act that violates Rule 3.5(b).”
• Passive review where the juror becomes aware – through a feature of the website or social media site – that the lawyer has visited is also okay. Such behavior does not constitute “impermissible contact.”
• Active review where the lawyer – either directly or through an agent - sends the juror an access request (a friend request on Facebook, for instance) is not okay. This, the opinion says, would be an impermissible ex parte communication.

In addition, ABA 466 says: “In the course of reviewing a juror’s or potential juror’s Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.”

ABA 466 is an advisory opinion only. It is not binding on NC lawyers. But following its advice could be presented as a mitigating factor if your behavior is called into question.

Impartiality and Decorum of the Tribunal

NC Rule of Professional Conduct 3.5 says:

(a) A lawyer shall not:

(1) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law;

(2) communicate ex parte with a juror or prospective juror except as permitted by law …
(5) communicate with a juror or prospective juror after discharge of the jury if:

(A) the communication is prohibited by law or court order;
(B) the juror has made known to the lawyer a desire not to communicate; or
(C) the communication involves misrepresentation, coercion, duress or harassment.

(b) All restrictions imposed by this rule also apply to communications with, or investigations of, members of the family of a juror or a prospective juror.

(c) A lawyer shall reveal promptly to the court improper conduct by a juror or a prospective juror, or by another toward a juror, a prospective juror or a member of a juror or a prospective juror's family.

• Comment [2] To safeguard the impartiality that is essential to the judicial process, jurors and prospective jurors should be protected against extraneous influences. When impartiality is present, public confidence in the judicial system is enhanced. There should be no extrajudicial communication with prospective jurors prior to trial or with jurors during trial by or on behalf of a lawyer connected with the case. Furthermore, a lawyer who is not connected with the case should not communicate with a juror or a prospective juror about the case.
  * Comment [3] After the jury has been discharged, a lawyer may communicate with a juror unless the communication is prohibited by law or court order.
• Comment [4] Vexatious or harassing investigations of jurors or prospective jurors seriously impair the effectiveness of our jury system. For this reason, a lawyer or anyone on the lawyer's behalf who conducts an investigation of jurors or prospective jurors should act with circumspection and restraint.
• Comment [5] Communications with, or investigations of, members of families of jurors or prospective jurors by a lawyer or by anyone on the lawyer's behalf are subject to the restrictions imposed upon the lawyer with respect to the lawyer's communications with, or investigations of, jurors or prospective jurors.
• Comment [6] Because of the duty to aid in preserving the integrity of the jury system, a lawyer who learns of improper conduct by or towards a juror, a prospective juror, or a member of the family of either should make a prompt report to the court regarding such conduct.

Sources:

• American Bar Association http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_final_04_23_14.authcheckdam.pdf
• Joseph Corsmeier, Lawyer Ethics Alert Blogs http://jcorsmeier.wordpress.com/2014/04/24/aba-formal-opinion-states-that-lawyers-may-review-jurors-internet-presence-before-or-during-trial-unless-prohibited-by-law-or-court-order/
• American Bar Association, Jamila A. Johnson http://www.americanbar.org/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/litigation_johnson.html
• NC State Bar http://www.ncbar.com/rules/rules.asp?page=35

Jay Reeves a/k/a The Risk Man is an attorney licensed in North Carolina and South Carolina. Formerly he was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. Contact jay.reeves@ymail.com or 919-619-2441.