According to a new decision by the American Bar Association, DUI trial lawyers may review the social media sites of jurors selected for jury service in their drunk driving trials. This might be done for two reasons; first to determine if a juror is a good candidate for a particular drunk driving trial, and second, to determine if a juror has, during the trial, violated an order of the court by posting anything inappropriate about the trial.
Today, jurors are routinely told by the judge to refrain from using the internet as it relates to the trial, and are often precluded from bringing their phones into the jury deliberation room. This is because a DUI verdict at trial must be based only on the evidence produced, and therefore, not based on something a juror may have learned about a fact at issue in the trial on sites such as Wikipedia or Ask.
Also, jurors are admonished not to talk about the trial, or their deliberations, before the verdict is received. One can imagine a juror going home after a day of deliberation, and posting a proposed verdict on their facebook page, then letting their friends vote (like) the proposed verdict before it is further deliberated then received by the court! This ABA opinion seeks to prevent such practices.
Many DUI lawyers already use social media to learn about their prospective jurors, and determine (from what they or their investigators have gleaned), whether or not a particular juror is “fit to serve.” All seasoned trial lawyers know that voir dire, which is the questioning before trial, is woefully inadequate, and that jurors often lie by commission or omission when asked personal questions by the judge or by lawyers. Social media may therefore provide a more accurate and reliable way to investigate a juror’s “opinions or conscientious scruples.”
Most individual state bar associations have not yet ruled on this issue, and the ABA opinion is advisory only, meaning not controlling. This is because each state has its own Bar Association, and the ABA has no authority or jurisdiction to sanction an individual lawyer licensed in any particular state.
One can imagine how useful social media might be for lawyers who try drunk driving cases. It is likely to be quite easy to determine if a particular juror uses alcohol socially, supports organizations such as MADD or has strong religious reasons to dislike or disuse alcohol.