Last year, when teaching jury selection and thinking about the voir dire proceedings in our animal rescue cases, I came across a case in which the parties asked permission from the court to look up the social media profiles of potential jurors and the court refused. The appellate court thought this was proper. This seemed completely loony to me: why would you even ask permission to access publicly available information that people volunteer about themselves, let alone be rebuffed? I cannot find the original case, but I did find a useful summary of the law on the Bloomberg platform, which you can read here in full. Here is the summary they offer:

  1. Check to see if there is a court order or decisional law in your jurisdiction governing reviewing the social media of jurors, and review relevant bar association decisions.
  2. To the extent it is consistent with other obligations and there is sufficient time, trial lawyers should diligently learn what they can from public sources on the internet. Not doing so promptly risks waiving an objection to an unqualified juror. [THIS IS WHAT I WOULD HAVE EXPECTED. IT MAKES SO MUCH SENSE. H.A.]
  3. It should go without saying that trial lawyers should not violate the law by accessing private information on the internet.
  4. Trial lawyers may never misrepresent who they are or why they seek information. This goes for their agents as well.
  5. Trial lawyers should use great care to avoid doing any internet research that might be considered a communication with jurors. Communicating with jurors, even inadvertently, poses the risk of an ethical violation and is potentially offensive to jurors. This means not viewing a person’s LinkedIn profile unless the notification function is disabled. Great care should be taken not to visit other social media that sends an automatic notification regarding who has visited. If the trial lawyer does not understand the technology, he needs to hire somebody who does or forgo using the technology.
  6. Like almost everything that happens at trial, whether and how much to research jurors is ultimately a matter of judgment. A trial lawyer must balance her desire for information about jurors with competing priorities such as preparation of witness examinations and arguments. And a trial lawyer must balance her desire for information with the risk of offending a juror who may feel offended if the juror learns that the lawyer has accessed publicly available information that the juror nevertheless considered private.
  7. If a lawyer finds juror misconduct, he or she should consult the relevant ethics opinions of the jurisdiction. Given the other demands of trial, it probably makes sense to have the relevant ethical decisions on hand and at the ready in the event that juror misconduct is discovered.

Moreover, the ABA website points to several cases in which courts have recognized an affirmative duty to conduct social media research on potential jurors: in today’s world, it can offer an important corrective to things people choose not to disclose in open court. Why would someone divulge private information on Instagram but not in voir dire? Perhaps because people have a warped perception of their own privacy. My students, who have spent summers in lower courts, have told me of situations in which jurors are asked very personal questions (such as whether they were ever sexually assaulted) in open court, including in front of other jurors. I would never ask such a question of a stranger in public; that’s what jury questionnaires are for. But even for less egregious prying, there are ways in which one’s Insta or Facebook can reveal discrepancies and additional details to a degree that I would think essential for a competent lawyer.

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