Jurors’ Use of Social Media During Trial

Jurors’ Use of Social Media During Trial

In this connected, digital age, the traditional admonitions from the court to jurors about discussing a case or conducting their own investigations have been modified to reflect technological developments.1 However, available data indicates that such admonitions are commonly ignored.2

There is even a blog called “Jurors Behaving Badly,” that is devoted solely to this topic.3 Despite the best efforts of the participants in the process, the new practical reality may be that trial will need to be conducted on the assumption that one or more of your jurors will use social media during trial.

In light of this, you must consider at the outset what material is available online about your client and manage the client’s online presence, to the extent it is ethical to do so. This begins with Googling your client in advance of the initial meeting, so that any questionable search results can be discussed at the meeting.

The search results may influence whether you even take the case. If you decide to represent a client
that has negative material online, at least you will be coming into the case with your eyes wide open. During the initial meeting, the client should be advised that anything he or she posts may become evidence and to avoid discussing online anything related to the litigation. Some attorneys even put these admonitions into the attorney-client agreement.4

The thorniest question involves potential removal of problematic material that is already online.
Such removal raises questions of spoliation of evidence. The analysis involves whether it is foreseeable that the material might be relevant in litigation. At least one commentator has suggested that the mere fact that an attorney would advise a client to remove material might demonstrate the foreseeability of its relevance.5 The California State Bar maintains a web page related to social media ethics issues.6 Neither that source nor the author’s independent research reveals any California appellate opinion addressing the issue directly.

The issue has been handled in some other jurisdictions via bar ethics opinions.7 The prevailing view thus far is that you can advise clients to adjust their privacy settings to provide for the maximum level of privacy. The opinions also suggest that the material may be deleted from social media pages altogether, provided that you retain hard copies of the material in the event that production is required. This step preserves the material, allowing it potentially to be obtained through the discovery process.

However, unlike the scenario where information is freely available on the Internet and can be obtained by opposing counsel without notice, by taking down the material, you will be alerted to opposing
counsel’s attempt to obtain the material and the ability to object and argue relevance is preserved.

At the same time that you are considering the client’s online presence, you should consider your own online presence. The impression projected by counsel for credibility and professionalism can make the
difference in a jury trial. While most attorneys are sophisticated enough not to post embarrassing personal information, they might not stop to think about the impression that some of their other online content creates. “Puffing” online about your superior trial skills and thereby implying that you can achieve results larger than justified by the facts may help attract some clients, but it also can undermine your credibility with the juror who, despite the judge’s admonitions, has decided to Google you.

In order for you to be effective, the jurors must always understand that you are a trustworthy source of information for them and your online content should reflect that. Because your online content,
whether personal or professional, is rarely relevant to the issues in the litigation, you will have much more latitude to polish your online presence.

Ideally, when you are in trial, you will have someone monitoring the social media of jurors to detect violations of the admonitions.8 Obviously, this will be influenced by the amount in issue and the size of your trial team. Social media habits can be covered in voir dire and may provide information to better monitor social media during trial, as well as potentially providing information as to whether you want the juror on the panel in the first place.9 Some commentators have suggested that jurors be asked for their Twitter handles to facilitate such monitoring.10

The trial of Conrad Murray (Michael Jackson’s doctor) in southern California made news for the use of
social media to screen potential jurors.11 Diane Karpman reports in her California Bar Journal ethics column about an unpublished New Jersey case in which the appellate court found that it was unreasonable for a judge to prohibit an attorney from using the court’s public Wi-Fi to Google potential jurors.12

In a recent Missouri case, the Missouri Supreme Court indicated that members of the bar had a duty to
use advances in technology to research jurors in a timely manner and instructed trial courts to “ensure
the parties have an opportunity to make a timely search prior to the jury being empaneled.”13 Yet, in the survey of federal judges discussed above, 120 out of 466 responding judges indicated that they would not allow such use of online resources during voir dire.

It seems reasonable to assume that the trend will be toward courts allowing counsel more use of social
media information in voir dire. The trend in all areas of law has been towards greater use of technology, perhaps after some initial resistance. Further, potential jurors are increasingly spending more and more time on social media, so any process that seeks to ascertain their beliefs and attitudes must take that into account.

Due to the unsettled nature of this area of law and its increasing importance, this is an area that is certain to have further developments. Trial counsel should check in from time to time with the State Bar’s website to stay updated on changes. In the meantime, don’t forget to Google your client—you never
know what you might find.

[1] See California Civil Jury Instructions, CACI 100.

[2] When Reuters monitored Twitter activity based upon the search term “jury duty,” results popped up “at the astounding rate of one nearly every three minutes.” While many were innocuous, “a significant number” contained blunt statements about substantive issues such as guilt or innocence in criminal trials. Reuters found that between January 2009 and December 2010, judges granted new trials or overturned verdicts in 21 cases. Even where judges declined to declare mistrials, Internet-related juror misconduct was found to have occurred in three-fourths of cases where verdicts were challenged on such bases. See http://www.reuters.com/article/internet-jurors-idUSN0816547120101208. However, there is one recent survey of federal judges by the Federal Judicial Center that concluded that juror use of social media during trial was not a widespread problem. See http://www.uscourts.gov/news/2014/07/29/survey-finds-infrequent-social-media-use-jurors.

[3] See http://jurorsbehavingbadly.blogspot.com/.

[4] “Web Offers Pearls of Wisdom, but also Legal Tangles” by Diane Karpman, California Bar Journal, August 2013. See http://www.calbarjournal.com/August2013/EthicsByte.aspx.

[5] “Social Media and Spoliation – Can a Client Delete Her Facebook Posts?” by Scott McConchie, National Law Review, September 29, 2014.

[6] See http://ethics.calbar.ca.gov/Ethics/EthicsTechnologyResources/SocialMedia.aspx.

[7] New York County Law Association Formal Opinion 745; Philadelphia Bar Ass’n. Guidance Comm. Op. 2014-5 (2014).

[8] “Social Media Use by Jurors in the Courtroom: How Facebook and Twitter Could Affect Your Jury Trial” by William Pfeifer. See http://law.about.com/od/trialtechniques/a/Social-Media-Use-By-Jurors-In-The-Courtroom.htm.

[9] Counsel may access an adverse party’s social media page to the extent accessible to all network members, but may not send an access request to obtain restricted information (i.e., a “friend request” in Facebook parlance). New York State Bar Association Ethics Opinion. 843 (2010); ABA Formal Opinion 466: Lawyer Reviewing Jurors’ Internet Presence. See also, San Diego County Bar Association Ethics Opinion 2011-2, which contains similar analysis but involved a represented party. However, compare the New York City Bar Association Formal Opinion 2010-2 which allows friend requests as long as not deceptive.

[10] “Social Media Use by Jurors in the Courtroom: How Facebook and Twitter Could Affect Your Jury Trial” by William Pfeifer. See http://law.about.com/od/trialtechniques/a/Social-Media-Use-By-Jurors-In-The-Courtroom.htm.

[11] See http://www.cnn.com/2011/09/20/tech/social-media/social-media-jurors-murray/.

[12] “Web Offers Pearls of Wisdom, but also Legal Tangles” by Diane Karpman, California Bar Journal, August 2013. See http://www.calbarjournal.com/August2013/EthicsByte.aspx.

[13] Johnson v. McCullough (Mo. 2010) 306 S.W.3d 551.