Jurors always are admonished by judges not to conduct any independent factual research with respect to the cases they are considering. In this way, the rules of evidence will be adhered to and jurors will only be permitted to evaluate evidence deemed admissible and relevant by the judge.
But what about lawyers? How much sleuthing can they do with respect to the potential and actual jurors for their cases? Can they, for example, snoop on social media sites to learn more? Read on.
Researching Potential Jurors
We know that lawyers can conduct a certain level of research when it comes to potential jurors. For example, when I previously worked as a prosecutor, we were provided in advance with information relating to the geographic demographics of potential jurors, as well as their prior run-ins with the law.
Potential jurors from one part of the county were known as prosecution-oriented, while the opposite was true as to those from another part of the county. Also, potential jurors who had previously been arrested or convicted were not thought to be prosecution-friendly. Thus, during jury selection, efforts were made to maximize the odds of jurors who might be prosecution-inclined based on the foregoing information obtained.
An entire cottage industry has developed when it comes to jury selection. There are many jury consultants now plying their trade, and at times they even sit at counsel’s table in the courtroom helping the lawyers decide whom to try to keep (or not keep) on the jury based on information such as gender, age, occupation, and other variables.
However, do lawyers (and their consultants) go too far to find out more by visiting the social media sites of potential and actual jurors? Somewhat amazingly, the ABA’s answer is “no.” Or put another way: Yes, social media sites can be checked out!
Jury Consultants Will ‘Like’ This…
Yes, indeed, the American Bar Association (ABA) has determined that it is ethical for lawyers to look at the publicly available social media posts of prospective and actual jurors. The only caveat is that the ABA cautions against lawyers actively friending or following these people or otherwise gaining access to them via private Internet spaces.
Perhaps the ABA’s guidance is not all that shocking. Public information is public information and should not be precluded from use by lawyers in their jury machinations just because that information shows up on social media sites, some might argue. Others might take the position that even though some social media posts are publicly available, this just goes too far and is too invasive.
One thing is for sure, though, the depth and breadth of jury research will be exponentially expanded under this new regime. And this cottage industry might come more and more outside of the cottage. Plus, thorough jury research of social media sites could become very expensive, as social media searches can be very time consuming, with further time incurred leading to more costly jury-consultant bills.
At the end of the day, will information from social media posts lead to a better jury selection process? Not necessarily. If both sides to a case utilize this information, there could be nullification — each side challenging the best potential jurors for the other side — pushing toward a balanced jury in the middle.
Eric Sinrod is of counsel in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at firstname.lastname@example.org with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.