January 17, 2020 Practice Points

A Quick Guide to Social Media and Litigation

Practitioners should be aware of the potential complications these platforms pose before and during trial.

By Andrew J. Ennis and Catherine A. Green
Social media is extremely useful, and potentially dangerous, in modern trial practice.

Social media is extremely useful, and potentially dangerous, in modern trial practice.

Photo by Cristian Dina from Pexels

Social media is extremely useful, and potentially dangerous, in modern trial practice. A Pew study found that 68 percent of U.S. adults get news from social media. Matsa and Shearer, “News Use Across Social Media Platforms 2018,” Pew Research Center (Sep. 10, 2018). While most traditional or mainstream news services publish news content on social media, many other sources of information readily available on social media are unchecked or unverified. Because social media’s portability provides information in real time to jurors sitting in the jury box, practitioners need to consider the implications social media has on the various stages of trial and how to use it to their advantage.

Don’t Limit Yourself to Jurors and Their Profile Page

In today’s litigation world, it is common to review and monitor social media data for the parties and jurors. Doing so, however, ignores a valuable source of information: the jurors’ friends and family. The social media activity of these groups of individuals may expose a potential bias that would not have been otherwise uncovered. For example, exploring a potential juror’s friends or followers, or those that a juror follows, may reveal that they know witnesses, the opposing party, or opposing counsel. Practitioners, therefore, should explore the jurors and their close friends’ and families’ social media profiles.

Although an individual’s profile provides the most information, his social media activity can also provide a wealth of information. Practitioners should explore any publicly available information, including photos, comments, and “likes.” For example, practitioners should consider whether the individual

  • Follows a journalist who is critical of the client;
  • Was exposed to viral videos or posts that involve the case or an analogous fact pattern;
  • “Liked” posts adverse to the client; or
  • Reposted or retweeted damaging messages from others.

Comprehensive social media research—pulling on threads to get a holistic view of an individual’s relationships, connections, and opinions—will help paint a much more accurate picture of the juror and their potential bias.

Social Media Is Important to Voir Dire . . . and Beyond

When selecting the jury, 18 U.S.C. § 1870 gives parties three peremptory challenges and an unlimited number of challenges for cause. Local jurisdictions vary, but essentially all provide peremptory and for-cause challenges. Because of this, most practitioners know to monitor social media presence in preparation for and during voir dire. Practitioners should come prepared with information to support their challenges for cause including, for example, copies of videos, screenshots of posts, evidence of social media connections, and the like. But practitioners should use caution when exercising their challenges. Practitioners should ensure the broader jury panel is not exposed to any bias-generating or prejudicial materials. Instead, the materials or proof should be for the judge’s eyes only.

The importance of social media does not end with voir dire. Due to the prevalence of social media usage, practitioners should make it a practice to ask the court for an instruction on social media activity, instant messaging, and texting during the trial. And, even if such an instruction is given, practitioners should monitor the jurors’ social media accounts to ensure that they are not sharing information or commentary about the case during trial. To the extent a juror does so, Fed. R. Civ. P. 47(c), and corollary state rules, allow the court to excuse a juror for “good cause.”

For example, in State of New Jersey v. McAtasney, the New Jersey Superior Court dismissed a juror for her use of social media during a murder trial. Nicole Darrah, New Jersey man found guilty of murdering childhood friend wants new trial over juror's 'LMAO' Facebook post, Fox News (May 16, 2019), https://www.foxnews.com/us/nj-man-murder-retrial-juror-lmao-facebook-post. The trial court had instructed the jurors not to discuss the case with others and not to view any coverage of the case. But the dismissed juror commented “Sitting on the jury LMAO,” on a news article about the trial, which caused the court to excuse her. And the social media issues did not end there. According to the defense’s brief, another juror contacted the excused juror via Facebook messenger to ask why she was no longer at trial. Thereafter, the excused juror gave an interview via Facebook messenger. The defense moved for a mistrial, which the court denied. Nonetheless, this case illustrates the complications social media can cause during trial.

Conclusion

Social media provides lawyers with ready access to significantly more information about jurors than ever before. Trial practitioners should mine social media resources before and during trial to better formulate strategy, determine how best to connect with jurors, and to identify unknown or unexplored biases that could impact the outcome of the case.

Andrew J. Ennis is a shareholder and Catherine A. Green is an associate with Polsinelli PC in Kansas City, Missouri.

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