Lawyers are free to research jurors and potential jurors through social media websites before, during and after trials, the American Bar Association (ABA) has ruled.
The opinion, issued by the ABA’s ethics committee, concludes it is permissible for lawyers to scan sites such as Facebook, Twitter and LinkedIn as long as the attorneys do not communicate with the jurors or prospective jurors.
The restriction on communication means that lawyers cannot ask jurors or potential jurors for access to information that is not freely available in the public domain. For example, lawyers are barred from making “friend” requests to jurors via Facebook or asking to follow jurors on Twitter in order to access information that might be hidden behind a privacy wall.
“This would be akin to … asking the juror for permission to look inside the juror’s house because the lawyer cannot see enough when just driving past,” the committee wrote in its formal opinion, Lawyer Reviewing Jurors’ Internet Presence, issued in April 2014.
The ethics committee also found that notifications sent to users of some social networks that show who has viewed their profiles do not constitute communication.
Long-standing legal rules restrict communication between lawyers and jurors or potential jurors in an attempt to preserve the impartiality of trials. However, the proliferation of social media websites has added another layer of complexity to this task.
There are an estimated 150,000 trials annually in U.S. state courts, according to a 2007 report by the National Center for State Courts and the State Justice Institute. About 1.5 million Americans serve on juries each year.
Meanwhile, Internet use has skyrocketed over the past two decades, with an estimated 87% of American adults active on the Web, the Pew Research Center reported in February 2014. More than 70% of those adults use social media.
The rise of the Digital Age has presented new concerns for the legal and criminal justice systems. A 2010 investigation by Reuters Legal found that in the prior decade more than 90 verdicts nationwide had been challenged because of potential juror misconduct related to the Internet, such as conducting online research or contacting parties in the case.
The ABA ethics committee made two recommendations for lawyers who use social media networks to investigate jurors. First, be mindful of any messages the jurors might receive from sites such as LinkedIn that indicate a page view on a user’s account. Second, use the information gleaned from social media searches for jury selection purposes and not to “embarrass, delay, or burden the juror or the proceeding.”
In addition, the opinion instructs lawyers who discover juror misconduct through their social media searches to “take reasonable remedial measures, including, if necessary, disclosure.”