SAN FRANCISCO — Lawyers have been given the green light to scan the social media sites of jurors.
The American Bar Association says it’s ethical for lawyers to scour online for publicly available musings of citizens called for jury service — and even jurors in deliberations.
But the ABA does warn lawyers against actively “following” or “friending” jurors or otherwise invading their private Internet areas. Though judges now universally admonish jurors to refrain from discussing trials on social media, the nationwide lawyers group for the first time is addressing how deeply attorneys, their investigators and their consultants can probe for information that might signal leanings of potential jurors, or unearth juror misconduct during trials.
Jurors’ online postings have disrupted many legal proceedings over the years, causing mistrials and special hearings over the effects of Facebook musings, tweets and blog writings about their trial experiences. Lawyers and judges have also been wrangling over how far attorneys can go in assembling a jury with help from online research of jurors’ social media habits.
A few judges have denied lawyers permission to research social media sites as overly invasive while others have allowed it. One company has gone so far as to develop a software product that promises to create a juror profile through social media posts and monitor jurors during the trial.
The ABA’s ethics committee began reviewing the issue about two years ago and concluded in April that looking at Facebook posts, Twitter tweets and other information gathered passively is ethical research.
“It’s like any other publicly available information,” said Donald Lundberg, an Indianapolis, Indiana, attorney who helped draft the ABA’s opinion as an ethics committee member.
Lundberg said one of the thornier issues for the committee was whether lawyers could view LinkedIn and other social media sites that notify members that they have been searched. Ultimately, the ABA committee decided a LinkedIn search was ethically sound, which runs counter to an opinion issued by the New York City Bar Association in 2010 that said any notice sent to a potential juror about a search amounts to an unauthorized communication.
“We stay away from LinkedIn and similar sites,” said Leslie Ellis, a Washington D.C. jury consultant. “We don’t want to do anything that would make them uncomfortable to serve.”
Ellis said her firm has been asked on occasion to conduct social media searches of prospective jurors, but only when their names are available days before they arrive at the courthouse. Ellis said prospective juror names generally aren’t available until the morning jury selections begins and that time-constraints limit what can be found online.
“Social media searches are time consuming and expensive,” Ellis said. “What takes so long is confirming that you found the right person.” At least two state bar organizations have addressed online searches of potential jurors.
The Missouri Supreme Court requires lawyers to research potential jurors’ litigation history on a Web site that tracks lawsuits in the state. The Oregon State Bar published an opinion last year that’s in line with the ABA guidelines, saying lawyers can access publicly available social media information, but can’t actively “follow” or “friend” potential jurors.
The California State Bar, the biggest state bar in the country, has not addressed the issue, spokeswoman Laura Ernde said.
Some lawyers are sold on social media searches and have been following the practice for some time.
Last year, New York defense attorney Barry Berke hired a jury consultant firm and instructed it to search social media sites of potential jurors in the insider-trading case of Michael Steinberg. The consultant was looking for anti-Wall Street comments or other signs of possible bias. Prospective jurors thought to be biased were removed from the pool. Still, the former SAC Capital Advisors executive was convicted of insider trading and sentenced to 3 ½ years in prison.
Other lawyers who haven’t searched previously now say they will embrace the practice.
“I will be doing it for every trial,” said Khalid Sheikh, a suburban Detroit, Michigan, defense attorney.
Late last month, a jury was deliberating whether Sheikh’s client was guilty of first-degree murder when the lawyer’s 26-year-old son wondered aloud what the jurors were saying on social media sites. “I said they shouldn’t be saying anything,” Sheikh said, but decided to check anyway. He discovered a juror had made Facebook posts about the case before and after he was empaneled.
After his client was convicted of first-degree murder, Sheikh asked for a new trial, alleging that the posts violated the judge’s rule against jurors discussing the case. “Not cool a young man is dead another young man will be in prison for long time maybe,” the juror allegedly said. On Monday, the judge denied Sheikh’s motion for a new trial, ruling the posting was innocuous. Sheikh plans an appeal.
——————— PD: It is a known fact that employers and attorneys always use social media to find data on the opposing side, period. It is best to not post anything public on any social media site, period. Facebook is just an accident waiting to happen like many other sites. Unfortunately, people disclose WAY TOO MUCH personal information that is no one’s business until it comes to haunt you because you were stupid enough to put it out there in the first place.
Our experience for example, in a case resulting in a $1m verdict against the defendants, indicated that one juror lied and had been using Google to search for the other defendant’s story online (which was a homicide already concluded) and then other jurors ratted her out to the Judge. When called to the stand she claimed she never looked up anything of the sort. Then after an initial poll showed that nearly all of the jury voted to award $100,000, the next day it suddenly changed to $1,000,000, of which $400,000 applied to the defendant, and our client (already in jail) was the remainder…however, our client had already been convicted of homicide when we were not the attorney in the criminal case.
In other words, the jury found the convicted homicide defendant in a civil matter, LESS guilty than the other defendant, even though the homicide defendant was found 100% culpable of the death. Obviously, being in jail already (actually prison) the defendant is not going to be able to pay much of the award, and the insurance only covered about $100k…we figured by time attorney fees were calculated, the Plaintiff did not really get very much? BTW–be careful what you text to others, even if you are drunk. Part of the conviction for first degree in the case was due to a “text” involving a threat to kill someone, if someone else hurt a particular animal? This is a clear indication that juries tend to do what they want and will often ignore the evidence. Many juries like to punish people even if it does not follow the jury instructions.
Too much reality TV nonsense and too much disclosure, too much secret-telling, too much of everything that is absolutely none of anyone’s business to begin with, and we think people that do it are complete idiots? In fact, email is dangerous enough because every single email is a writing. When conversations are always recorded (unknown to the speaker) it would seem to appear that privacy has vanished, and stories can be sold by the barrel if you have the right data? Does anyone recall that search and seizure is designed to protect these things? It’s no wonder that kids these days are so dumb. They fall for everything because no one does any teaching anymore. Very sad. The instant photos, instant selfies, instant exposes, instant everything is only good if it serves some good purpose, if not, then why do it? Obviously it makes people $$$….. HSUS should invest in it.