Surveys indicate that, when online, a majority of adults spend most of their time on social media sites. Lawyers have taken the bait—uploading electronic professional profiles onto a wide variety of social media sites. These sites are rich in personal information and lawyers are using this information to market their practices, research witnesses, and check out potential jurors for a trial.

This post examines the new practice among trial lawyers of searching for the social media profiles of prospective jurors before, during, and after trial. We also explore the limits to this practice, and comment on the related problem of ensuring that jurors do not tap into social media, or the broader Internet, to obtain additional information about a case during trial.

Advancing Technology Complicates an Established Process

Jury trials have been a part of our court system since the inception of our nation nearly 250 years ago. Before that, the courts in Great Britain utilized the jury-based fact finding and dispute resolution process for centuries.

In federal and in most state courts, now-standard jury instructions include the admonition not to try obtaining information about a case via social media or the Internet as an addendum to the routine instruction prohibiting juror discussion about any aspect of the case on which they sit. We all know that today’s juror can get online and find out details about the judge, the attorneys, the parties to the litigation and, sometimes, even the circumstances surrounding the case.

Trial attorneys know that a trial is about managing information relevant to the case, submitted for jury consumption. Under the court rules and rules of evidence, however, when and how that information is presented to the jury is strictly controlled. Most cases hinge on which evidence gets to the jury for their deliberation.

What happens when a juror utilizes the Internet to supplement this highly-controlled information, or employs social media to obtain personal information about a party or a witness in the case? This problem has been recurring with increasing frequency over the past five years. A “good” result in such cases is a mistrial; but sometimes grave injustice is the outcome. The cost: thousands of wasted dollars for trial attorneys, their clients, and the court system. Also, our jury-based system of justice suffers a significant confidence crisis.

To combat this problem, trial attorneys have been routinely requesting a now-standard jury instruction for jurors not to discuss the case on any social media site, or to use social media sites, or other Internet-based tools, to obtain more information about the case.

Avvocator and trial attorney Tyson Snow recently completed a jury trial in federal court in Montana. In addition to requesting the social media jury instruction, Mr. Snow also searched for the jurors’ profiles on several social media sites. Of the 13 sitting jurors (12 plus an alternate), seven of the jurors had a presence on some of the common social media sites. After the proceedings each day, Mr. Snow would then take a few moments to monitor the activity of the jurors to determine whether they were communicating anything about the case online.

Mr. Snow’s trial took two weeks to complete. Therefore, jurors were home from the trial over the course of a weekend; a tempting time for most jurors to drill into the case, learn more about the key players, and trumpet what they thought about it all to their social media connections. Luckily, Mr. Snow’s jurors were cyber-clean: no one made trial-ruining posts to their sites.

In the process of monitoring potential and sitting jurors, trial attorneys will recognize the potential to mine additional helpful information about these folks. No attorney would doubt that a person’s social media profile (even one tailored to privacy) is a richer source of personal information than a standard juror questionnaire, or even the more detailed federal juror questionnaires.

Another Dimension to the Problem

It is one thing to monitor those jurors that maintain public profiles on social media sites to ensure they are not discussing the case with their connections. Yet, it is something entirely different when a juror, privately, accesses social media or the Internet-at-large to obtain additional information about the case—information not endorsed by the court through the applicable rules. This activity is well hidden from the professionals.

Such case-surfing contravenes the efforts of the court and the lawyers, who strive to present information to a jury in accord with a very specific, long-standing, and thoroughly developed set of rules. These rules are designed to eliminate prejudice through limiting a juror’s consideration to only the admissible relevant evidence. From the trial lawyer’s perspective, the prospect of a juror, charged with deciding a case based on specific rules and evidence, breaking those rules to obtain extra-judicial information is disheartening.

One possible solution is to monitor jurors’ internet activity during the trial by having the jurors disclose their IP addresses and social media handles prior to trial so they can be monitored. Technicians hired by the court could install special cookies so that if a juror accesses the Internet about the case in any way, the juror’s foray is reported to the trial judge.

An Invasion of Privacy?

The concept of lawyers tapping into potential jurors’ (or witnesses’) social media profiles has, of course, raised ethical concerns. A consensus has emerged that such activity is ethical—even required in conjunction with the lawyer’s ethical duty to provide zealous representation for a client. Also, no one has a legitimate expectation of privacy in a public electronic profile.

This year, the New York City Bar Association issued a formal ethics opinion stating that, so long as no communication occurs between the trial lawyer and the juror, it is not unethical for the attorney to research the juror online, or through social media sites.

The overarching question is whether our long-standing jury system can survive this technological-based affront. As time marches on, this conflict will be played out with more frequency and greater visibility. In the meantime, if you do find yourself seated in the jury box, listen to the judge’s instructions and, above all else, follow them.

Timothy P. Flynn is the founder and owner of Clarkston Legal and a partner in the Clarkston-based general practice law firm Karlstrom Cooney, LLP. He authors The Law Blogger, a blawg carried by the Oakland Press. Follow him on Twitter: @clarkstonlegal

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