According to American Bar Association Formal Opinion 466, issued April 24, 2014, trial lawyers may review the social media sites of jurors selected for jury service in their trials. This might be done for two reasons; first to determine if a juror is a good candidate for a particular 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.
The ABA opinion decided to tackle this issue because “there is a strong public interest in identifying jurors who might be tainted by improper bias or prejudice. There is a related and equally strong public policy in preventing jurors from being approached ex parte by the parties to the case or their agents.” The opinion hopes to attempt to give some guidance into what is and is not ethically allowable.
All seasoned DUI trial lawyers know that as a general principal, voir dire is woefully inadequate, and that jurors often lie by commission or omission when asked personal questions by the judge or by lawyers. Consequently, one can imagine how useful social media might be for lawyers who try drunk driving cases. For example, 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.
The ABA opinion recognizes that many lawyers already use or have at least been tempted to use social media to learn about their prospective jurors. The opinion attempts to set forth certain guidelines and principles to govern the use of social media.
These guidelines include “encouragement” that each jurisdiction, or even each judge in a particular case, fashion a “court order, whether in the form of a local rule, a standing order, or a case management order in a particular matter” addressing how the jurisdiction’s rules of professional conduct will govern counsel in their use of social media for this purpose.
While the opinion makes it clear that a lawyer may view ESM (electronic social media) of a perspective juror, it also makes clear that a lawyer may not send an access request as this would constitute an impermissible ex parte communication. The same is not necessarily true of an ESM platform that automatically sends notice that their profile has been viewed. According to the opinion, this is permissible because the “lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM. This is akin to a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.”
The opinion further suggests that judges let jurors know that the lawyers “may investigate their backgrounds, including review of their ESM and websites.” Furthermore, that judge’s may limit access, and should let jurors know that “it is possible or likely that the jurors will be notified that their ESM will be viewed because this will “dispel any juror misperception that a lawyer is acting improperly merely by viewing what the juror has revealed to all others on the same network.”
Additionally, jurors are already 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 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.
Likewise, 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.
The opinion also makes it clear that if a lawyer learns of misconduct through passive review of a jurors ESM, he or she has an obligation to take remedial measures including informing the tribunal.
Most individual state bar associations have not yet ruled on this issue, and the ABA opinion is advisory only, meaning it not controlling.
This article is an excerpt from Patrick Barone‘s upcoming 2015 update to his “Defending Drinking Drivers,”(James Publishing) which will be available for purchase in April 2015. Used with permission. All rights reserved.