Lawyers can monitor the social media activity of prospective and impaneled jurors, according to a recent opinion from the American Bar Association, which addressed the issue after mounting questions about the relationship between new media technology and the legal system.
The ABA notes that many courts are already “instructing jurors in very explicit terms about the prohibition against using [electronic social media] to communicate about their jury service or the pending case and the prohibition against conducting personal research about the matter, including research on the Internet.” But there isn’t as much precedent for how lawyers may use (or not use) social media with regard to jurors.
Here the ABA opinion states that “a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.” The opinion also states that attorneys may not seek access to any social media content that is not already public.
There are a couple main reasons lawyers might want to review potential or active jurors’ social media, including “identifying jurors who might be tainted by improper bias or prejudice.” However “judges should consider advising jurors during the orientation process that their backgrounds will be of interest to the litigants and that the lawyers in the case may investigate their backgrounds, including review of their [electronic social media] and websites.”
Because attorneys are prohibited from communicating directly with jurors, the ABA opinion also addresses the issue of automated messages in social media, including for example a notification from the social network that the lawyer has looked at the juror’s profile. The ABA opinion states that this kind of automatic notification does not constitute a communication from the lawyer to the juror, since it is a technical feature of the social network.
The ABA acknowledges that there are still some gray areas regarding juror misconduct on social media, and when an attorney is obliged to report this misconduct to the court. For example, a juror might technically violate a judicial instruction not to talk about jury duty with “innocuous postings about jury service, such as the quality of the food served at lunch,” but such postings would still “fall short of conduct that would warrant the extreme response of finding a juror in criminal contempt.” Thus, “A lawyer’s affirmative duty to act is triggered only when the juror’s known conduct is criminal or fraudulent, including conduct that is criminally contemptuous of court instructions,” for example communicating substantive details of the trial itself, trying to make contact with a witness or defendant on social media, and so on.