Reviewing Social Media Use by Potential Jurors

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James Carnes

In a recent Federal Judicial Center survey of nearly 500 federal judges, 120 of those judges said they do not allow lawyers to conduct online research of prospective jurors during voir dire. One of the stated reasons for the prohibition was concern for the privacy of jurors. That prohibition could change in light of an American Bar Association (“ABA”) opinion that was issued after the survey. The ABA made clear that a lawyer may passively review the internet presence of jurors both “in advance of trial and during trial.” The only limitation is that a lawyer may not communicate directly or indirectly with a juror. In my experience, reviewing the social media posts of prospective jurors has been quite helpful in learning information that might not come up during voir dire, such as political positions, membership in political organizations or groups, and opinions on recent news and pop culture.

There is some risk involved for the lawyer. Should a lawyer discover juror misconduct while viewing the internet postings of a juror, the lawyer’s obligations are a bit murky. The ABA rules require a lawyer to take remedial measures–including, if necessary, informing the court–if the lawyer discovers “criminal or fraudulent” misconduct. But what about misconduct that does not rise to the level of criminal or fraudulent? While the ABA rules don’t trigger a duty to report misconduct that falls short of being criminal or fraudulent, the lawyer may have reporting obligations under state or local law or rules, so it’s important to be aware of what constitutes reportable juror misconduct in the trial court’s jurisdiction.