Seventy-two percent of Americans use social media, making hashtags and online posts an everyday part of life for most Americans. According to the Pew Research Center, in 2018, 69 percent of U.S. adults used Facebook, 73 percent used YouTube, 37 percent used Instagram, 27 percent used LinkedIn, 24 percent used Snapchat, and 22 percent used Twitter. Those social media users include jurors. This article discusses the use of social media to research and monitor jurors.
Researching Jurors on Social Media
Unsurprisingly, the 2017 ABA Legal Technology Survey Report revealed that social media and blogs are popular forms of marketing for law firms and individual attorneys. According to the survey report, 31 percent of law firms have a blog, and 12 percent of lawyers personally maintain a blog on legal topics; 81 percent of lawyers use social media for professional purposes, and only 23 percent of survey respondents reported that their firms do not use social media. The trend toward increased social media use for law-related purposes extends to how attorneys conduct jury selection. Attorneys can obtain relevant information about jurors from their social media accounts, such as potential relationships with or connections to parties, the judge, the attorneys, witnesses, or fellow jurors. Jurors’ social media activity may provide insight into their personal views on issues relevant to the case based on articles shared, pages or persons liked or followed, and commentary on legal issues or current events. Jurors’ social media activity may reveal bias or prejudice based on information jurors may otherwise withhold during voir dire.
Many attorneys view jury selection as more important to the outcome of trial than the evidence, but attorneys struggle to obtain information through traditional voir dire due to court-imposed time constraints and a movement toward judge-directed questioning. Thaddeus Hoffmeister, “Investigating Jurors in the Digital Age: One Click at a Time,” 60 U. Kan. L. Rev. 611, 611 & 635 (2012). This adds to the attraction of online juror investigations, which can be performed quickly inside or outside the courtroom. Id. In fact, some argue that online juror investigations are required under comment 8 to Rule 1.1 of the ABA Model Rules of Professional Conduct, which requires attorneys to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Hoffmeister, supra, at 612 (“A prominent trial consultant has even claimed that ‘[a]nyone who [does not] make use of [internet searches] is bordering on malpractice.’”); N.Y. City Bar Ass’n Formal Op. 2012-12 (“Indeed, standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case.”). The question then is to what length may an attorney go to obtain a juror’s social media information? Can an attorney obtain only public information, or can an attorney take steps to access information restricted from the general public?
In 2014, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466, providing guidance for attorneys to conduct online juror investigations without violating Model Rules 3.5 (Impartiality and Decorum of the Tribunal) and 4.4 (Respect for Rights of Third Persons). In issuing Formal Opinion 466, the ABA attempted to balance the public interest in identifying potentially biased jurors with the public policy protecting jurors from ex parte communications with the parties and attorneys. The ABA determined that passive review of a juror’s online presence, i.e., reviewing information publicly available without making an access request, is permitted under the Model Rules. “The mere act of observing that which is open to the public would not constitute a communicative act that violates Rule 3.5(b).” It is permissible for an attorney or attorney’s agent to log into an account or create an account in the attorney or attorney agent’s true name to conduct the research. However, it is an impermissible ex parte communication for an attorney or attorney’s agent to send an access request to the juror to access information protected from the public through privacy settings (it is impermissible to send a request to friend, connect, follow, subscribe, etc.). Thus, when conducting social media research, attorneys and their agents must be careful not to commit the dreaded accidental “like” or similar response to a juror’s post because such contact would constitute an improper ex parte communication. The ABA concluded that an automatic notification from the social media website to the juror that an attorney or attorney’s agent viewed or attempted to view the juror’s profile does not constitute a prohibited access request or ex parte communication because the communication is generated by the social media website and is not a true communication from the attorney or attorney’s agent.
ABA Formal Opinion 466 provides only a precursory analysis of the issues implicated by using social media to research jurors, and it begins with the caveat that its guidance applies “[u]nless limited by law or court order.” Not all courts and jurisdictions have adopted the ABA’s guidance. The rules on what is permissible for online juror investigations vary by jurisdiction, by judge, and even by case. For example, unlike the ABA and state bar associations adopting the ABA’s position (such as Colorado and Pennsylvania), the New York City Bar Association determined that a search constitutes an improper ex parte communication with a juror if the juror receives a notification that the attorney viewed or attempted to view the juror’s profile. The New York State Bar Association confirmed in 2019 that an attorney must conduct social media research in a way that does not leave any “footprint” or let the juror know the attorney viewed the juror’s social media profile. New York’s rule emphasizes the potential intimidation a juror may feel knowing an attorney knows the juror’s online location, has access to the juror’s personal information, and is “watching” the juror online. Under the New York rule, even automatic notifications generated by the social media site are prohibited. Thus, before viewing a juror’s LinkedIn profile, the attorney must change his or her settings to prevent a notification from being sent to the juror that the attorney viewed the juror’s profile.
Model Rule 8.4(c) prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Therefore, an attorney cannot use any form of deception to gain access to juror information, meaning an attorney or attorney’s agent cannot work around New York’s rule to gain access to private juror information by creating a fake social media profile or by withholding information that the attorney or attorney’s agent are involved in the case.
Judges have discretion to deviate from the guidelines established by the ABA. In Oracle America, Inc. v. Google Inc., 172 F. Supp. 3d 1100, 1107 (N.D. Cal. 2016), the trial judge cited ABA Formal Opinion 466 and then noted “[t]hat such searches are not unethical does not translate into an inalienable right to conduct them.” The trial judge proceeded to describe the reasons he believed a total ban on research of jurors’ social media was warranted in the case. Id. at 1102–3. He discussed the possibility that jurors, upon learning the attorneys and parties were entitled to conduct internet research on them, would refuse to comply with the admonition prohibiting them from doing their own internet research. Id. at 1103. He was also concerned that attorneys would make improper personal appeals to specific jurors based on the information they obtained. Finally, he expressed concern that it constituted an improper invasion of the jurors’ privacy, particularly given the likelihood that the jurors may not fully understand privacy default settings on social media sites. Despite these concerns, the trial judge did not impose a ban, instead suggesting that both sides voluntarily agree to it. If they refused, they would be subject to a court order requiring them to inform jurors of the specific extent to which they intended to use internet and social media searches to investigate and monitor jurors, and the jurors would be permitted time to use their mobile devices to adjust their privacy settings before the attorneys conducted their searches. The court order would allow the attorneys to monitor jurors during trial using the same methods described to jurors during voir dire, but they were required to immediately report to the court any apparent juror misconduct, regardless of whether or not the misconduct was favorable to them. Finally, the attorneys would be required to maintain an “exact record of each and every search and all information viewed” for potential future examination by the court or the opposing side. Id. at 1104. Oracle demonstrates the flexibility judges have in issuing orders relating to social media research.
Given the lack of a uniform binding rule governing online juror investigations, attorneys should make a pretrial request to the court seeking permission to conduct internet and social media research on jurors and to establish clear rules regarding the acceptable methods of research and expectations regarding use of the information obtained from the research. Attorneys should also obtain pretrial instructions regarding what will be disclosed to the jurors regarding the research. For example, if only one party is seeking to conduct the research, and the jurors are advised of that, the requesting attorney needs to know that so he or she can weigh whether it is worth the risk of potential juror backlash from a perceived invasion of privacy. Finally, attorneys should determine the judge’s expectations about reporting juror social media misconduct during trial.
Monitoring and Reporting Juror Misconduct
Social media are often described as an addiction, and based on the statistics, rightfully so. Almost three-quarters of Facebook users, which is 68 percent of U.S. adults, visit the site daily, with about half visiting it multiple times a day. Over 50 percent of the users of Instagram, Snapchat, and YouTube visit the sites at least once a day, and over 40 percent of Twitter users visit the site daily. Jurors will continue to use social media during trial, posing a risk that they may encounter media stories or other exposure to the case online. In an anonymous survey conducted by a trial consulting company, 56 percent of surveyed jurors had searched online for information about the case during trial, including researching the law, attorneys, and parties, and looking for articles about the case, and 27 percent had posted about the case on social media during trial. A search of juror misconduct reveals case after case of jurors using social media to post about and research cases in violation of the court’s admonition against communicating about or researching the case on social media. See, e.g., United States v. Fumo, 655 F.3d 288, 332 (3d Cir. 2011), as amended (Sept. 15, 2011) (Nygaard, J., concurring) (“The examples of this type of behavior are legion.”); People v. Neulander, 135 N.E.3d 302 (N.Y. 2019) (reversing a murder conviction and granting a new trial because a juror deliberately violated instructions not to discuss the case with others and not to conduct internet research regarding the case).
Under ABA Formal Opinion 466, an attorney must “take reasonable remedial measures, including, if necessary, disclosure to the tribunal,” if the attorney discovers “juror misconduct that is criminal or fraudulent.” Formal Opinion 466 does not state whether attorneys must report other types of juror misconduct, such as a violation of the court’s admonition. However, that is often an expectation of the court, and a party may be deemed to have waived an appeal based on juror misconduct if the conduct could have been discovered and reported prior to the verdict. See Oracle, 172 F. Supp. 3d at 1106. It is therefore incumbent upon the attorney to determine whether ongoing monitoring of jurors’ social media is necessary and to seek pretrial guidance from the court on when and how to report perceived misconduct.
Social media are an ever-present part of most Americans’ lives, and they provide a potential wealth of information about jurors generally not available during traditional voir dire. Attorneys should keep abreast of the ethical and legal implications of using social media to research and monitor jurors and seek court permission and guidance on the method of conducting the research and the expectations for the use of information obtained from the research.
Anne E. McClellan is a member of Jennings, Strouss, & Salmon, P.L.C., in Phoenix, Arizona.
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