It makes sense to research potential jurors, and social media makes it easier than ever. But courts have only recently begun to issue guidance now that researching jurors and other courtroom players online is becoming an increasingly common practice.
Researching judges, too, has its advantages. Some jurisdictions, like California, allow you to strike a judge once per case without establishing bias. Although there are limitations and technicalities on these rules, they can give you a say in who decides cases — making it important to know your judge. But even if you cannot strike a judge for any reason, wouldn’t you want to know if the judge deciding your case despises loud yawns, sings the blues, or has a tendency to belt out show tunes while court is in session?
States Where You Can Strike Your Judge
A Duty to Prepare
Not only does online research give you a competitive advantage in the courtroom, you may have an ethical obligation to do it.
One court has approved of using new technologies to research potential jurors. After the jury returned the verdict for the defendant in Johnson v. McCullough, the plaintiff’s lawyer searched a litigation database and found a non-responsive juror had been a defendant in multiple debt collection cases and a personal injury case. The trial court granted the plaintiff’s motion for a new trial and the Supreme Court of Missouri affirmed, encouraging reasonable efforts to use the Internet to research the litigation history of selected jurors and present any relevant information prior to trial.
Don’t Ask; Don’t Tell
Many courts have given the green light to research opposing counsel, judges, juries, and others using social networks like Facebook, Twitter, Myspace, and Xanga (apparently, the last two are still a thing). However, you are generally prohibited from sending any type of connection request to the social media user you are researching. This means you cannot ask to connect or take any other action that tells account holders you are researching them.
The American Bar Association issued a formal opinion strongly suggesting you should not request access to the social media accounts of jurors before or during a court proceeding. In Formal Opinion 466, the ABA Standing Committee on Ethics and Professional Responsibility stated that any communication to a juror that requests access to information not made public is considered a prohibited ex parte communication under Model Rule 3.5(b). Some courts have interpreted this to ban any contact that results in the notification of the social media account holder. However, courts have yet to reach a consensus on this issue
Bar associations in Oregon, Kentucky, New Hampshire, and New York have all followed suit, giving the go-ahead to access to the public social media pages of jurors, witnesses, and other parties in pending cases.
At a more local level, the US District Court for the District of Idaho issued guidelines on social media research into jurors. District Local Civil Rule 47.2 allows the use of the Internet to research jurors and prospective jurors within the confines of information which is accessible to the public and information is available and accessible to the public so long as it does not result in send an access request or other contact. If you didn’t think anonymity and discretion was an important aspect of your research, this rule painstakingly emphasizes this at least five different ways. The San Diego County Bar echoed a similar sentiment that a friend request — or any other request for access — is prohibited ex parte communication to adverse parties as well as jurors.
In Carino v. Muenzen, the New Jersey Appellate Division found that Internet research on jurors is even permissible during voir dire. When the use of Google to conduct research on potential jurors was brought to the attention of the trial judge, the court prohibited the research because no advance notice had been given and the judge wanted to create an “even playing field,” since the defendant’s counsel was not conducting the same research. On appeal, the Appellate Division criticized the trial court’s effort to create an “even playing field,” noting that Internet access was open to both counsel.
Not all courts agree that researching courtroom actors on the Internet is permissible or even beneficial. A judge in Montgomery County, Maryland, denied a request to allow research of potential jurors because it could have a chilling effect on jury service if they knew they were going to be Googled as soon as they walked into the courthouse.
Under Model Rule 4.2, you are prohibited from communicating with represented parties without consent of the other lawyer or by court order. Accordingly, requesting permission from a represented party to access his or her non-public information is in violation of the Model Rules. Comment 3 suggests that Rule 4.2 applies even if the communication is initiated by the represented party. Therefore, you are also prohibited from accepting a friend request from a represented party.
Furthermore, you should avoid using another person’s online identity — whether it be a friend, intern, secretary, or paralegal — to obtain information through social media. Model Rule 8.4(a) bars you from doing through another what you cannot do yourself. Under Rule 5.3, you are still responsible for the actions of anyone employed, retained by, or associated with you. If it is unethical for you to friend or follow a represented party, it is also unethical for you to encourage someone to do so on your behalf.
What Does the Judge Say?
Judges have the final say in what is or is not permissible in their own courtrooms.
In 2014, the Federal Judicial Center surveyed district court judges on the use of social media in the courtroom. Of the 466 judges who responded, 120 said they prohibit researching prospective jurors on social media during jury selection. Only 23 judges said they directly allow it.
Among judges who do not permit attorneys to use social media during the jury selection process, the most common reasons were concerns about logistics and the privacy of jurors. These judges thought jury research would be too distracting or may result in the intimidation or harassment of jurors. A whopping third of responding judges thought using social media to research prospective jurors was unnecessary.
Even when judges do permit attorneys to use social media to research potential jurors, more than half said they require disclosure the court or opposing counsel.
As new and innovative uses of social media in the litigation context continue to emerge, so do new and unexpected ethical pitfalls. If you do not know the functionality of a social media platform, you should tread lightly in conducting research and keep in mind the possibility that even an accidental, automated notification can be considered a violation.
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