If you have ever served as a jury member you probably remember completing a jury questionnaire prior to your service. This jury questionnaire requires that you answer some fairly basic questions about yourself and submit it to the court. The questionnaire assists in making the determination as to your suitability to act as a juror on specific cases. What you may not know is that prior to the start of a trial, counsel receives copies of the questionnaires for all members of the jury pool. While the questionnaire is fairly basic, it definitely contains information that allows attorneys to identify you and, if they desire, the information that would allow the attorney to find out a whole lot more about you. Also, remember that we live in the “age of Social Media” and it is not difficult to foresee the problem. I mean, really, you can find more out about a person by perusing their Facebook Page or Twitter feed than pretty much any other source. People, quite surprisingly, are prone to broadcast their deepest, darkest, most private thoughts on social media. Rest assured, that if you put the information out there, it will be discovered by those you wish did not have access to it, such as employers and now also attorneys.
You cannot really fault the litigation attorneys that are making social media review of jurors a part of their preparation for trial. It is their job to discover as much about the prospective juror as they possibly can to ensure that they are suitable to be chosen as a juror and do not have any undisclosed bias against their client. After all, attorneys are charged with the responsibility of zealously representing their clients and their clients’ interests.
Courts have, increasingly had to deal with jurors’ desire to discuss ongoing trials on social media. While problematic, judges can normally curtail such activity by instructing the jurors that commenting about the trial on social media is a big no-no and that failure to heed the judge’s admonition could have undesired consequences, such as being held in contempt of court.
However, it is becoming so common for attorneys to view the social media pages of prospective jurors that the American Bar Association (“ABA”) has offered its advice in the form of Formal Opinion 466. You may ask why it is such a big deal because like stated earlier, you should not have an expectation of privacy on anything you post on social media. The crux of the problem is found in the Rules of Professional Conduct, specifically Model Rule 3.5(b), which prohibits ex parte communication with jurors. In Formal Opinion 466, the ABA has determined what constitutes ex parte communications in the realm of social media.
The formal opinion divides social media review into three categories, two of which are permitted and one which is not. Passive review of a juror’s social media profile that is set to “public” is permitted. Essentially, passive review is that which is available without the attorney making an access request and review that occurs without the juror’s knowledge. However, if the juror’s social media settings are “private”, thereby requiring an access request, then that request would be considered an ex parte communication because it would be a specific request from the attorney to the prospective juror. Finally, the formal opinion states that if there is an automatic notification feature that notifies the person of a passive review, think LinkedIn, that it is permissible because the communication is from the social media entity and not the attorney. However, the New York State Bar Association has reached a different conclusion regarding the automatic notification, classifying it as an improper communication.
The ABA ethics committee added a suggestion that judges may want to advise the jury pool that the attorneys have a legitimate interest in learning more about their backgrounds which may include searching for information on the internet. While I definitely can see the benefit of such a statement, I am sure that most prospective jurors will not appreciate an attorney digging into their background. Times, though, are definitely changing and people’s expectation of privacy is dwindling with each new technological invention.
As with any rule, there are exceptions.
Please seek professional assistance with any questions or specific situations.
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