Most of us know only enough about jury selection to figure out how to get bounced from a potential jury. Lawyers who work in jury selection, though, know its ins and outs and have a new tool to consider – social media. So how much can lawyers use social media to learn about jurors, and how far may a juror go in social media posts about their jury service before they corrupt the judicial process? And how will we all see this play out at the country once again glues itself to media to watch a “trial of the century”?
Social Media in Jury Research
Jury research is an entire industry unto itself. Lawyers who go to trial frequently and outside jury consultants spend significant resources learning about the people coming into the courtroom just hoping to be excused to go back to their lives. Books and movies like The Runaway Jury dramatize the process and give some actual insight into how it’s really done, and current media attention on the George Zimmerman trial brings jury selection into our living rooms. As lawyers and jury consultants seek to learn about potential jurors, social media postings provide great fodder for ferreting out a juror’s beliefs and personal preferences.
Is looking at a potential juror’s social media postings ethical?
In recent posts I have discussed the ethics of investigating witnesses, judges and other parties through their social media posts. The common theme is that so long as posts are public and a lawyer need not “friend” the posting person in order to see the post, then the posted information is fair game. The same holds true for juror research.
The New York City Bar Association issued an opinion on this very point. In Formal Opinion 2012-2, it said that an attorney may view publicly available social media postings for the purpose of evaluating a potential juror, but the attorney may not “communicate” with the potential juror any more than he could have before the advent of social media. “Communicate” in the social media context includes sending a friend request or otherwise allowing the potential juror to know that the attorney is viewing the juror’s posts. Moreover, the attorney may not engage in any deception, including pretending to be someone else, for the purpose of gaining access to the potential juror’s posts.
This ethical framework is consistent with an attorney’s obligations regarding social media and other individuals as well, including judges and opposing parties.
Social Media and Sitting Jurors
Sitting jurors are subject to court order not to discuss the pending case, but in our world of constantly posting and tweeting about anything and everything that comes to mind, this is a tough rule for many jurors to follow. (It shouldn’t be, but real world examples show that it is.) As a result, many of them violate it through social media postings. Lawyers are watching and taking these violations to the court.
The New York City Bar Association’s Formal Opinion 2012-2 and the New York County Lawyers’ Association Committee on Professional Ethics Formal Opinion 743 addressed this issue, along with citing a number of actual cases where it has been a problem. The New York opinions concluded that an attorney following the rules of not communicating with jurors or using deceit to obtain access to postings, who nonetheless sees that a juror has violated the court’s order not to discuss the case, must bring the violation to the attention of the court. The court will then act upon it just as it would if the court learned that a juror discussed the case in a non-social media forum, such as a phone call or in-person conversation with another person. Lawyers must not take their own action to address the juror misconduct.
The problem of jurors on social media is not theoretical. Juror misconduct on social media can have a major impact on the administration of justice. Take for example the Arkansas case where a murder conviction was overturned because a juror tweeted during the trial. See Dimas-Martinez v. State, 2011 Ark. 515 (Ark. 2011).
There is also a big gray area between jurors ignoring the court’s instructions and misconduct leading to overturned convictions. Many cases have come down where jurors disregarded the court’s instructions and posted on social media about the trial, but the court did not find the misconduct severe enough to declare a mistrial. In Smead v. CL Financial Corp., No. 06CC11633, 2010 WL 6562541 (Cal. Super. Ct. Sept. 15, 2010), the court found that social media posts about the length of the trial were not prejudicial. Similarly, in United States v. Ganias, 2011 WL 4738684, at *3 (D. Conn. Oct. 5, 2011) juror postings such as “Guinness for lunch break. Jury duty ok today” did not taint the trial.
Courts are beginning to deal preemptively with the problems jurors and social media may create. In New York the pattern jury instructions now include a provision reminding jurors “It is important to remember that you may not use any internet services, such as Google, Facebook, Twitter or any others to individually or collectively research topics concerning the trial . . .” New Jersey and Florida have made similar provisions. These instructions coupled with ethics rules that explicitly allow attorneys to monitor the publicly-available social media postings of sitting jurors attempt to maintain the integrity of the judicial process in the digital age.
Today we find ourselves immersed in the media circus of the George Zimmerman trial as jury selection continues. As with other “trials of the century,” the country will be riveted as we watch the judicial process at work. The prosecutors and defense lawyers have vetted the potential jurors and under the ethical rules, they likely checked each and every one’s social media accounts. As the trial progresses, they will hover over social media to monitor jurors’ compliance with court instructions. So long as the lawyers refrain from communicating with the jurors, all of that monitoring will be ethical.