Lawyers attempting to find out everything they possibly can about prospective jurors in their cases is nothing new. Lawyers often hire trial or jury consultants for the clients who can afford them. These consultants might investigate the backgrounds of prospective jurors through their online presence, public records searches, or by other means. But in the age of the Internet, lawyers often don’t need expensive consultants to uncover a treasure trove of information about prospective jurors and, in fact, may be required to do at least a nominal review of a prospective juror’s social media and online presence as part of the lawyer’s duty of competence. There are, however, differing ethical constraints that apply to both lawyers’ and judges’ use of social media in jury selection that must be carefully considered before embarking on the investigation of jurors through their social media or other online presence.
As we all know by now, nearly everyone leaves a digital footprint while using the Internet. Some may be bigger than others, but it takes a great deal of effort to completely avoid leaving traces of personal information online. Realistically, most of us don’t have the time or inclination to do much beyond minimally adjusting our privacy settings, and we have stopped being alarmed when the Facebook algorithm instantaneously starts showing us ads for items we were just searching for on Google or another platform. Most of the time, we don’t give a second thought to the idea that much of the seemingly innocuous information about ourselves that we put out online through social media and other platforms might provide insight into our political leanings, business dealings, religious views, purchasing habits, and/or our proclivity for watching funny cat videos to anyone who might be interested and who has the technical capability of today’s average middle school student.
Specifically, looking up a name on Google, Facebook, LinkedIn, Twitter, YouTube, TikTok, or similar social media sites can reveal much about a prospective juror. Photos posted on social media can provide valuable insight into the type of activities, hobbies, travel, and other personal information that may lead a lawyer to include or exclude a potential juror. Blogs written or videos created by the prospective juror, or his or her family members, may reveal how the person feels about topics that may also influence his or her decision-making process. Political affiliations, including donations to parties or candidates, are easily discoverable through various reporting websites that could inform lawyers about how a particular juror may view their client’s case.
Beyond these standard searches, a lawyer can find other revealing information through public searches. Take, for example, a trial involving the liability of a police officer accused of civil rights violations. The lawyer for the police officer would likely be interested in knowing whether any of the prospective jurors had participated in recent protests, whether they were wearing clothing in pictures posted on social media that might give an indication of support (or a lack of support) for law enforcement, or if they had shared links to an online fundraiser in support of organizations that promote the protection of civil rights. Such information may be far more reliable than the prospective juror’s answers to questions during voir dire, which may be biased in order to make the juror more or less likely to be selected.
While this type of information may seem inconsequential to its owner, it can be extremely valuable to lawyers in the context of deciding whether to select or eliminate jurors in high-stakes, or even low-stakes, litigation, and failing to perform an online search for information about prospective jurors may violate a lawyer’s duty of competence, from both a disciplinary and civil liability perspective. In 2012, the American Bar Association (ABA) amended Model Rule of Professional Conduct 1.1 and added Comment [8], which requires lawyers to keep abreast of changes in, and risks and benefits of, technology. Since then, at least 39 states have adopted this Comment into their rules of professional conduct. (References herein are to the ABA Model Rules of Professional Conduct (Model Rules) and the ABA Model Code of Judicial Conduct (Model Judicial Code). Although most jurisdictions’ rules of professional conduct and judicial rules or codes are based in whole or in part on those of the ABA, there can be some discrepancies, and lawyers and judges should consult the applicable rules of professional conduct and rules or codes of judicial conduct in their specific jurisdiction(s).)
Even prior to that amendment to Model Rule 1.1, some courts and ethics opinions specifically addressed a lawyer’s duty to investigate a prospective juror’s online presence. In Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010), the Missouri Supreme Court held, and later codified, that a lawyer must use “reasonable efforts” to find potential jurors’ litigation history in Missouri’s automated case management system. In addition, New Hampshire Ethics Opinion 2012-13/05 advised that lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.” The New York City Bar Association Committee on Professional Ethics, in Formal Opinion 2012-02, also found that a search of a prospective juror’s online presence was a necessary component of a lawyer’s competence, stating, “[i]ndeed, the standards of competence and diligence may require doing everything reasonably possible to learn about jurors who will sit in judgment on a case.”
Notwithstanding the duty to be competent, lawyers must be cognizant of the ethical lines between permissible investigation of prospective jurors’ online footprint and impermissible ex parte communication with prospective jurors when investigating prospective jurors’ social media or other online presence. For example, can a lawyer, or a person working for the lawyer, send a friend request on Facebook or an invitation to connect on LinkedIn to someone who is a prospective juror? Model Rule 3.5 provides some guidance. It states, in the pertinent part:
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order.
ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 466 (Apr. 24, 2014) further explains that it is permissible for a lawyer to passively review a juror’s public presence on the Internet and on social media platforms. However, a lawyer may not attempt to “friend,” “connect,” or otherwise request access to nonpublic information of a juror or prospective juror, as that would be considered a communication prohibited by Model Rule 3.5(b). Similarly, a lawyer who asks another to do what he or she is prohibited from directly doing violates Model Rule 8.4(a). As such, a lawyer may not ask an employee, friend, relative, or acquaintance to “friend,” “connect,” or otherwise communicate with a juror or prospective juror to gain access to the prospective juror’s nonpublic information. In addition, neither a lawyer nor his or her agent may misrepresent his or her identity to communicate with or otherwise access nonpublic juror information, as that would be considered misleading, deceitful, and dishonest conduct contrary to Model Rule 8.4(c).
Lawyers should also be aware that certain social media platforms, such as LinkedIn, have settings that may notify the user when others have viewed their public profile and, in some instances, may even identify the viewer. This raises the issue of whether the notification, initiated by a lawyer’s viewing of a prospective juror’s public profile, constitutes an impermissible communication.
In Formal Opinion 466 the ABA Standing Committee on Ethics and Professional Responsibility concluded that such notification did not constitute an impermissible communication with the potential juror because the platform, rather than the lawyer, was generating the notification. The Committee recognized that, in some instances, the lawyer might not even be aware that such a notification was sent to the juror. It is worth noting, however, that prior to the issuance of ABA Formal Opinion 466 in 2014, some jurisdictions reached an opposite conclusion, which remains in effect as of the date of this writing. (See, e.g., N.Y. City Ethics Op. 2012-2 (2012) (lawyer may not research jurors using social media websites if lawyer’s access to websites would generate communications or notifications to juror); N.Y. Cnty. Lawyers Ass’n Comm. on Pro. Ethics Formal Op. 743 (2011) (lawyer may not “follow” juror through social media); Sluss v. Commonwealth, 381 S.W.3d 215 (Ky. 2012) (relying on N.Y. Cnty. Lawyers Ass’n Comm. on Pro. Ethics Formal Op. 743, lawyer may research juror’s online presence but may not take any action by which juror becomes aware of monitoring).) As a further note of caution, even in jurisdictions that permit lawyers to passively view a prospective juror’s social media information knowing that the prospective juror may be notified of the viewing, in accordance with ABA Formal Opinion 466, repeatedly browsing a prospective juror’s profile, knowing that this individual is being notified each time, could violate Model Rule 4.4(a) if it has no substantial purpose other than to embarrass, delay, or burden the prospective juror, or if the repetitive viewing rises to the level of harassment or intimidation. (See, e.g., Colo. Bar Ass’n Formal Ethics Op. 127 (Sept. 2015; revised May 2019).)
Information located on social media can also be useful in ensuring the ethical integrity of the jury by identifying jurors who may have made false statements on their juror questionnaire or by identifying any jurors who may be posting about the case on social media inappropriately. When lawyers find that a juror has engaged in misrepresentation or improper conduct, Model Rule 3.3 requires that such misconduct be reported to the court. In addition, a lawyer who represents a client in an adjudicative proceeding and who knows that a party, lawyer, witness, juror, or other participant in that proceeding intends to engage in or has engaged in criminal or fraudulent conduct related to the proceeding must take reasonable remedial measures. Comment [12] to Model Rule 3.3 provides additional guidance, stating as follows:
Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so. (Emphasis added.)
For example, during the jury voir dire conducted in the trial of Jose Padilla, the “dirty bomber,” defense counsel conducted online searches of prospective jurors as they were called to the jury box. Defense counsel learned that one prospective juror lied on her questionnaire about her involvement with the criminal justice system and informed the court of the lie, resulting in the juror being removed. (Julie Kay, Vetting Jurors via MySpace, 30 Nat’l L. J. 1 (Aug. 11, 2008).)
Regardless of whether Padilla’s counsel believed that the prospective juror’s true background would have been beneficial to Padilla, Model Rule 3.3 and its commentary suggest that counsel had an ethical obligation to report the discovery of the prospective juror’s dishonesty to the court to protect the integrity of the adjudicative process. Knowing that their answers may be subject to such scrutiny, jurors might also be more truthful in completing their questionnaires, again furthering the ethical integrity of the adjudicative process. Moreover, although it may be more common for people to try to avoid jury duty, lawyers should be cognizant of the phenomenon of stealth jurors, defined as those “who seek to inject themselves into the process for self-serving reasons,” such that they tailor their answers to jury questionnaires with an eye to being selected to impose their personal views or opinions. (Bennett L. Gershman, Contaminating the Verdict: The Problem of Juror Misconduct, 50 S.D. L. Rev. 322, 345 (2005).) Although stealth jurors are relatively rare, having a mechanism to guard against them by cross-checking their answers against prior statements or information available through social media also protects the integrity of the adjudicative process.
Although it can also be tempting for judges to do their own research into lawyers, witnesses, or jurors who appear before them, in stark contrast to a lawyer’s apparent duty to investigate prospective jurors’ social media and other online presence to maintain competency, judges are generally prohibited from conducting their own research into a prospective juror’s background via online sources or otherwise. Rule 2.9(C) of the Model Judicial Code specifically states that “[a] judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” Model Judicial Code Rule 2.9(D) further provides that “[a] judge must make reasonable efforts, including appropriate supervision, to ensure that” other court officials and staff subject to the judge’s direction and control similarly refrain from engaging in such independent investigation. Additionally, Comment [6] to Rule 2.9(C) of the Model Judicial Code clarifies that “[t]he prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic” (emphasis added).
Interestingly, although neither the ABA Model Judicial Code nor most state judicial codes of conduct explicitly reference social media in this context, the Illinois Supreme Court recently adopted an updated version of its Code of Judicial Conduct and incorporated a new Comment [8] to Rule 2.9, which specifies that “[j]udges who maintain a presence on social media or social networking platforms should be aware of the potential for these sites to become unintended vehicles for ex parte communications.” Similarly, Illinois also added a Comment 2 to Rule 2.8 of its new Code, which states that “[c]ommending or criticizing jurors for their verdict, including on social media or social networking platforms, may imply a judicial expectation in future cases and may impair a juror’s ability to be fair and impartial in a subsequent case” (emphasis added).
In 2017, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 478, which provides additional guidance to the judiciary to specifically assist in navigating what online independent factual research is and is not permissible. The Committee identified the following four criteria a judge should consider in making his or her determination:
Based on this analytical framework, the Committee concluded that a judge must not use social media to obtain information regarding a matter before it and that online research to gather information about a juror or party in a pending or impending case would constitute such independent factual research that is prohibited by Rule 2.9(C) of the Model Judicial Code. The Committee did note, however, that a judge may research the social media and other online presence of lawyers who appear before the court, as long as it is done merely to “become familiar with counsel . . . or to determine whether the lawyer is authorized to practice law in the jurisdiction” and not for the purpose of weighing or considering adjudicative facts in a matter before it.
In summary, publicly available information about prospective jurors that is accessible through their social media or other online presence can be an invaluable resource for lawyers in preparing for trial. Lawyers and judges should, however, be cognizant of their differing duties and restrictions related to the investigation of prospective jurors through these sources. While providing competent representation to their clients and maintaining the integrity of the adjudicatory process may require lawyers to conduct some level of review of a prospective juror’s electronic footprint to make an informed decision as to whether to include or exclude a particular juror, judges are generally prohibited from conducting similar inquiries. Lawyers who do investigate a prospective juror’s online and social media presence should take care to ensure that their, or their agents’, investigation involves only a “passive” review of the prospective juror’s public information and does not rise to the level of an ex parte communication or otherwise harass or embarrass the person at issue.
