by Leslie Ellis, Ph.D. and Samantha L. Schwartz, Ph.D., M.L.S.
As of January 2015, almost one billion people worldwide (and two-thirds of Americans) used Facebook at least monthly, and 400 million tweets were sent per day. A vast majority of those under 65 use social media and, contrary to many assumptions, so do more than a third of adults over 65. Geography doesn’t matter much either; over half of all Americans in rural areas use social media, compared to about two-thirds of those in suburban and urban areas. Social media is everywhere, and the courtroom and jury room are no exception.
Social media has also become an important resource for information on potential and actual jurors. However, it has also become a source of consternation when jurors aren’t forthright in voir dire or when they disclose too much via social media during trial, both of which have had dramatic consequences.
Before the days of the internet and Google Earth, private investigators used to drive by jurors’ houses to see what their house looked like, what kind of neighborhood they lived in, and whether they had any bumper stickers on the car or signs on the lawn. The assumption was that these pieces of information would provide some additional insight into jurors’ socioeconomic status, beliefs, and political affiliations. Social media and other online sources like Google provide that same sort of information, plus much more.
This new world of easily-accessible information begs several questions that this article will address. Why should we do this kind of social media research in the first place? What are the rules on how to do it? What do judges think about this kind of research? Do you have to do it?
Why look at jurors’ social media?
Our experiences, backgrounds and beliefs affect what we do with new information because we have an innate tendency to seek out information that confirms what we already know and discard information that does not. This tendency is called “confirmation bias.” As such, jurors’ experiences, backgrounds and beliefs act as filters and any new piece of information they learn during a trial gets run through their filters to assess its credibility. New information that comports with those pre-existing beliefs and attitudes is allowed through the filter and is more likely to be remembered and used later. Information that doesn’t comport is more likely to be either distorted to make it comport or rejected as being incorrect. In the courtroom and the jury room, this process heavily impacts how much weight jurors give to evidence.
Social media provides unprecedented insight into what those filters might be for individual venire members. What do they post? What do they like or dislike? Decisions about whether to keep or strike a potential juror are complex and not all information is useful. For example, does it help your decision on whether to keep or strike a juror to know someone “likes” Game of Thrones or Target? Probably not. But some posts or tweets, pages or people they follow, or group affiliations can provide deeper insight into jurors’ personal filters and biases (for example, whether someone follows Fox News versus MSNBC is an indication of political affiliation, which may be relevant in some cases). Understanding these filters has always been important, but voir dire is becoming more and more limited. Social media provides another opportunity to uncover those biases in lieu of more expansive voir dire.
What are the rules?
Before we address what to do with all of this new information, it’s important to review the relevant ethical boundaries. Many state bar associations have issued their own ethics opinions on what attorneys and their agents (e.g., paralegals, private investigators or jury consultants) can access and view. New York City, New York County and the New York State Bar Associations have also all issued their own ethics opinions, as has the American Bar Association. They agree on most points, with one key distinction.
They all agree on the basic premise that attorneys and their agents are permitted to view what users have made public (i.e., not restricted through various privacy settings). If the information is unrestricted, it’s fair game, and essentially is the online equivalent of driving by the juror’s house.
However, attorneys and their agents are not allowed to communicate with or contact potential jurors, particularly with the intent of gaining access to private information. As such, “friending,” inviting to connect, and following or subscribing to an individual’s sites or profiles in order to to gain access to private information are strictly prohibited. Attorneys are also not permitted to ask someone else to initiate or cause contact with potential jurors on their behalf.
The ethics guidelines diverge on whether or not a notice sent to the potential juror that someone has simply looked at their profile or site (as opposed to requesting access to private information) is an impermissible “unintended communication.” The LinkedIn “See who’s viewed your profile” notice is the main offender. Prior to 2012, the New York County Lawyers’ Association (NYCLA Committee on Professional Ethics Formal Opinion No.: 743, 2011) stated that “passive monitoring” of potential jurors’ social media sites is permitted, but that lawyers should not “act in any way by which the juror becomes aware of the monitoring.” In 2012, the New York City Bar Association (“NYCBA”) was the first to specifically address the question of whether LinkedIn notifications are an impermissible communication, and its answer was, “Yes.” (NYCBA Committee on Professional Ethics Formal Opinion: 02, 2012) Even though the communication is unintended, viewing the profile while logged in causes the notice to be sent, which the NYCBA considers to be a prohibited communication. The NYCBA did not prohibit viewing the public version of a potential juror’s LinkedIn profile, but viewing a profile while logged in would be prohibited because it triggers the notice. The opinion added that it is the duty of the attorney to fully understand the functionality of the services (s)he uses, so pleading ignorance is unacceptable. In 2014, the Commercial and Federal Litigation Section of the New York State Bar Association (NYSBA Social Media Ethics Guidelines, 2014) agreed.
In 2014, the American Bar Association issued its ethical opinion on researching jurors via social media (ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 466, 2014). The ABA generally agreed with the previous opinions, including attorneys’ obligation to be aware of user policies and functionality of the sites they use. The exception was the LinkedIn notification. The ABA expressly stated that it did not prohibit searching that might leave a trace, such as the LinkedIn notice, as long as no direct contact is made with the juror. Further, the ABA also said judges should warn potential jurors that counsel will be interested in and may investigate their backgrounds, and that it is permitted.
The New York State Commercial and Federal Litigation Section responded to the ABA in 2015, and held firm in its belief that the LinkedIn notice is an impermissible communication (NYSBA Social Media Ethics Guidelines, Updated June 2015), citing concern for the potential jurors’ frame of mind if the juror found out an attorney or the attorney’s agent had viewed his or her profile. The NYSBA did note that, in addition to not logging in, using an anonymous LinkedIn profile would avoid the “communication.” To the NYSBA, the identity of the reviewer is what could upset the juror and, with an anonymous profile, the juror would only know that someone had looked, but not who.
At this point, making any direct contact and attempting to gain access to restricted information is not permitted anywhere, but viewing public information is expressly permitted. Those in New York, however, should tread carefully when doing anything that makes jurors aware that you looked them up, particularly viewing LinkedIn profiles – either use a profile that is always kept anonymous or do not log in to your profile.
What do judges have to say?
Even though the ABA and various state bar associations permit online social media research, judges still have a great deal of discretion on how to conduct jury trials in their courtrooms. So what have judges said about the issue? During jury selection in a trial in Superior Court in New Jersey, one party brought in a laptop to conduct online research on the potential jurors. Opposing counsel objected, saying they didn’t have a laptop to do searches, so neither party should be permitted to do so (Carino v. Muenzen, N.J. Sup. Ct. App. Div. Aug. 30, 2010). The trial court judge agreed and barred both parties from doing any online research. The first party appealed, and the New Jersey Appellate Court disagreed with the trial court judge, holding that just because one party didn’t come prepared to conduct online research, that did not bar the other party from proceeding.
Additionally, the Federal Judicial Center conducted two surveys, in 2011 and 2014, about the use of social media in trials (Dunn. Meghan “Jurors’ and Attorneys’ Use of Social Media During Voir Dire, Trial and Deliberations.” Federal Judicial Center, 2014). Almost 500 judges, from all 94 federal districts, responded to the survey. Of the 144 who expressly addressed conducting social media research on jurors in the courtroom during voir dire, only 26% of them reported that they forbade it, citing concerns about privacy, intimidation, prolonged voir dire, distractions, and logistics. More recently, the trial court judge in the Oracle v. Google retrial in the Northern District of California barred both parties from conducting online juror research prior to or during voir dire. The parties objected, and the judge gave them an option –the parties could conduct online research only if they disclosed to the jurors what they did and saw. Ultimately, both parties agreed not to conduct any online research. Anecdotally, these authors have seen most judges permit (or not forbid) the online social media research prior to or during voir dire.
Do you have to do it?
Some ethics rules and judges have suggested it is good practice to conduct online research on potential jurors. The NYCBA said that “standards of competence and due diligence may require doing everything reasonably possible to learn about jurors who will sit in judgment on a case.” Some litigators agree that it is simply due diligence; others have said it’s practically malpractice not to look. However, no entity or person has placed an affirmative burden on counsel to do it. The closest any state has come is when Missouri required potential jurors to be run through its Case.net system to look for any litigation history.
Regardless of the ethics rules, you may not want potential jurors to see that someone has viewed their profiles. If jurors see that a party has viewed their profile, they could react negatively towards that party or attorney–for example, by raising concerns about their privacy and safety, especially in criminal cases. Tread lightly when asking questions that rely on information uncovered only online.
Social media is becoming ubiquitous, and it is playing a larger and larger role in trials. Given how prevalent the use of social media has become, it’s practically an expected part of due diligence to search for and review what potential jurors are saying and doing that might be relevant to their ability to serve as a fair and impartial juror. At the same time, however, this kind of pre-trial work can be controversial and it can be easy to break the rules. Becoming familiar with the ABA and local guidelines, as well as any other rules specific to the venue or judge, are the first places to start.
Email us at [email protected] to learn how our full suite of trial consulting services can help you prepare for your next trial.
This article was originally published in DRI Trial and Tribulations Newsletter, v.22, 3 (September 2016)
Content published on the U.S. Legal Support blog is reviewed by professionals in the legal and litigation support services field to help ensure accurate information.