This post was written by Megan Zavieh and originally published on Lawyerist.com on September 2, 2014.
Most of us only know enough about jury selection to figure out how to get bounced from a potential jury. Lawyers who work in jury selection, though, know its ins and outs and have a new tool to consider: social media. So how much can lawyers use social media to learn about jurors, and how far may a juror go in social media posts about their jury service before they corrupt the judicial process? And how will we see this play out the next time the country gets wrapped up in a “trial of the century?”
Social Media in Jury Research
Jury research is an industry unto itself. Trial lawyers and jury consultants frequently engage substantial resources to learn about the people coming into the courtroom who are just hoping to be excused to go back to their lives.
Books and movies like The Runaway Jury dramatize the jury selection process and give some actual insight into how it is really done. Media coverage of major trials like the Zimmerman trial bring jury selection into our living rooms. As lawyers and jury consultants seek to learn about potential jurors, social media postings provide great fodder for ferreting out a juror’s beliefs and personal preferences.
Is looking at a potential juror’s social media postings ethical?
In other posts, I discussed the ethics of investigating witnesses, judges, and other parties through their social media posts. The common theme is that so long as posts are public and a lawyer need not “friend” the posting person in order to see the post, the information is fair game. The same holds true for juror research.
The New York City Bar Association issued an opinion on this point. In Formal Opinion 2012-2, it said that an attorney may view publicly available social media postings for the purpose of evaluating a potential juror, but the attorney may not “communicate” with the potential juror any more than they could have before the advent of social media.
Communicating in the social media context includes sending a friend request or otherwise allowing the potential juror to know that the attorney is viewing the juror’s posts. Moreover, the attorney may not engage in any deception, including pretending to be someone else, for the purpose of gaining access to the potential juror’s posts. This ethical framework is consistent with an attorney’s obligations regarding social media and other individuals as well, including judges and opposing parties.
Social Media and Sitting Jurors
Sitting jurors are subject to court order not to discuss the pending case, but this can be a tough rule for many jurors to follow. (It shouldn’t be, but real-world examples show that it is.) As a result, many of them violate it. Lawyers are watching and taking these violations to the judge.
The New York City Bar Association’s Formal Opinion 2012-2 and the New York County Lawyers’ Association Committee on Professional Ethics Formal Opinion 743 addressed this issue, along with citing a number of actual cases where it has been a problem. The New York opinions concluded that an attorney who sees that a juror has violated the court’s order not to discuss the case must bring the violation to the attention of the court. The court will then act upon it just as it would if the court learned that a juror discussed the case in a non-social-media-forum, such as during a phone call or a conversation. Lawyers must not take their own action to address the juror misconduct.
The problem of jurors on social media is not theoretical. Juror misconduct on social media can have a major impact on the administration of justice. Take for example the Arkansas case where a murder conviction was overturned because a juror tweeted during the trial. See Dimas-Martinez v. State, 2011 Ark. 515 (Ark. 2011).
There is also a big gray area between jurors ignoring the court’s instructions and misconduct leading to overturned convictions. Many cases have come down where jurors disregarded the court’s instructions and posted on social media about the trial, but the court did not find the misconduct severe enough to declare a mistrial. In Smead v. CL Financial Corp., No. 06CC11633, 2010 WL 6562541 (Cal. Super. Ct. Sept. 15, 2010), the court found that social media posts about the length of the trial were not prejudicial. Similarly, in United States v. Ganias, 2011 WL 4738684, at *3 (D. Conn. Oct. 5, 2011) juror postings such as “Guiness for lunch break. Jury did ok today” did not taint the trial.
Courts are beginning to deal preemptively with the problems jurors and social media may create. In New York, the pattern jury instructions now include a provision reminding jurors “It is important to remember that you may not use any internet services, such as Google, Facebook, Twitter or any others to individually or collectively research topics concerning the trial…” New Jersey and Florida have made similar provisions. These instructions coupled with ethics rules that explicitly allow attorneys to monitor the publicly-available social media postings of sitting jurors attempt to maintain the integrity of the judicial process in the digital age.
Today we fined ourselves immersed in periodic social media circuses during which the country will be riveted to the judicial process at work. The prosecutors and defense lawyers vet potential jurors, and they probably check the social media accounts of each and every one. As the trial progresses, they will also monitor jurors’ compliance with court instructions by keeping a close eye on those accounts. But as long as the lawyers refrain from communicating with the jurors, all of that monitoring will be ethical.