Given the decreasing time attorneys have for conducting voir dire, it can be very useful to investigate jurors with publicly available background information. Simply running Google searches can reveal an enormous amount of information about a potential juror in a short amount of time. This public information often will come from social media sources. As Ben Hancock reported in his article for Law.com, “social media profiles can present a trove of data points for jury selection…[but] researching jurors online while keeping on the right side of the judge and local ethics rules is hardly a straightforward exercise.”
More so than any other online resource, social media can open a window into a potential juror’s personal and professional life, and can be an incredible tool for juror research—so much so that the ethics rules of some bar associations require attorneys to be aware of social media as a potential source of information useful in a trial. See, e.g., New Hampshire Bar Association Ethics Committee, Op. 2012-13/05.
But there are also potential pitfalls. The American Bar Association’s Standing Committee on Ethics and Professional Responsibility has issued an advisory ethics opinion that permits attorneys to review a juror or potential juror’s presence on the Internet and social media, unless otherwise limited by law or the court. See Formal Opinion 466 (Apr. 24, 2014). But an attorney can’t request access to jurors’ non-public social media accounts (e.g., sending a “friend” request on Facebook) under the rule against ex parte contact. The ABA opines that automatic notifications generated by some social media sites (such as LinkedIn, which automatically notifies subscribers when another user views their profiles) are okay, but not all bar association ethics committees have taken the position. See generally Joy & McMunigal, ABA Approves Researching Jurors’ Public Presence on the Internet, ABA Section of Criminal Justice, Vol. 29, No. 3 (Fall 2014).
The law also varies by state and even courtroom by courtroom. As Ben Hancock notes in his article, a California district court “has become a famous example of the opposite end of the spectrum.” Hancock describes how U.S. District Judge William Alsup pushed the lawyers in a copyright case between big tech companies to skip internet searches on jurors, but “ultimately said he would allow them provided the tech giants told jurors they were being researched. Both sides opted not to do that.”
In criminal trials, Public Defender and CEB author Michael Begovich believes it’s ethical and permissible (while others might argue “mandatory”) for a trial attorney or a member of his or her team to conduct an electronic investigation of prospective jurors using Internet search engines such as Google or Bing during voir dire. Web-based investigation of publicly available information, e.g., the prospective juror’s public Facebook page and blog postings, can help counsel in deciding whether to exercise a peremptory challenge or challenge for cause.
Although there’s no California case, statute, or Rule of Professional Conduct directly addressing web-based searches for juror information during jury selection, Cal Rules of Prof Cond 5–320(E) states that
[a] member shall not directly or indirectly conduct an out of court investigation of a person who is either a member of the venire or a juror in a manner likely to influence the state of mind of such person in connection with present or future jury service.
It’s well established that a juror can’t be contacted once sworn, but simple web-based research of public information conducted in court about a prospective juror doesn’t appear to violate the rule. The ABA Standards for Criminal Justice that address pretrial investigation of prospective jurors likewise appear to permit use of an Internet search engine during voir dire. See ABA Standards for Criminal Justice: Defense Function 4–7.2(b); ABA Standards for Criminal Justice: Prosecution Function 3–5.3(b).
Searches of publicly available content from a prospective juror’s Facebook, YouTube, Instagram, Pinterest, or other social media accounts can be conducted, for example, inside the courtroom during jury selection by certified legal interns or other legal assistants. For specific steps to perform a search, see Begovich, Voir Dire in a Digital World: A Model for Ethical Internet Investigation of the Venire, 36 T Jefferson L Rev 227 (Spring 2014).
Other CEBblog™ posts you may find interesting:
- Should You Check a Job Applicant’s Social Media Posts?
- Using Social Media? Beware of Ethical Pitfalls (Part 1)
- Lessons on Social Media in the Workplace
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