St. Francis School of Law Dean Carole J. Buckner recently spoke to the Long Beach Bar Association on Legal Ethics, Social Media and the Jury. Jury selection, which used to rely heavily on the observations and intuitions of trial attorneys, has entered the digital age.
Prospective jurors may have social media accounts on Facebook, with over 500 million users, Twitter, with over 600 million users, and other social media platforms. Recent studies reflect that 2 out of three jurors access social media, and 77% of people between the ages of 30 and 49 are active on social media. Further, many share very candid information, in a less inhibited manner than they would in the courtroom, based in part on a feeling of anonymity, resulting in an information bonanza for trial attorneys selecting jurors. Third parties now over to put together information profiles on jurors. This type of “stealth” investigation avoids confrontation inherent in asking jurors questions in open court.
Parties to litigation can use social media data analytics tools to evaluate social media across platforms, including key word searches on relevant terms pertinent to cases. Attorneys can learn information jurors would be uncomfortable revealing in voir dire, such as pertinent medical conditions, corporate attitudes. Such information allows attorneys to craft trial strategy.
Legal ethics rules and opinions provide guidance on just how far attorneys and their staff and vendors can go in looking into the backgrounds of jurors. In general publicly available information is fair game. However, attorneys (and their subordinates) are prohibited from using false information to obtain non-public information, and impersonation via electronic means is a misdemeanor. In addition, lawyers cannot mislead jurors or the court. Attorneys also have a duty to supervise those working with them on a case to assure these ethics rules are followed.
California, like many states, prohibits attorneys from communications with jurors, directly or indirectly. So, attorneys need to understand how social media works and when such prohibited communication might result, depending on how the particular social media is designed. In addition, if attorneys continuing social media monitoring during trial note any juror misconduct, it must be reported to the court in a timely manner.
The approach of courts in this area continues to evolve, with one court ordering a juror to close his laptop during juror questioning (reversed on appeal), and another court suggesting there is an affirmative duty to conduct research online into a juror’s background. Most recently, in the Oracle v. Google case, the court asked attorneys to stipulate not to conduct research into juror’s social media. Otherwise, the court indicated it would give jurors advance notice. The court further indicated that no personal appeals could be made to jurors based on information derived from their social media likes and dislikes. As courts continue to grapple with this issue, these approaches will continue to evolve.