Law and Technology

Attorneys look at potential jurors’ social media accounts

July 11, 2014
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The American Bar Association says passively reviewing a juror or potential juror’s online presence is fair game for attorneys. Courtesy Thinkstock

Attorneys often take a peek at the social media accounts of those selected for jury duty.

They use the information to create a juror profile and possibly as the basis for striking a person from the jury.

“I might want to know if someone is a Republican or a Democrat, or if they have specific views about things that might influence whether or not I think they’d be a good or bad juror for a particular case,” said Jon Bylsma, Varnum Law attorney.

Bylsma said attorneys have been using social media since its earliest days to find out what they can about a prospective juror. He noted MySpace, in particular, helped him garner substantial information about jurors in the past.

Bylsma said the point is to root out bias.

“We as a society don’t want jurors with a bias on the jury,” he said. “That bias might be one of the common biases we think of — race or socioeconomic, but it’s also our life experiences. Of course, what one person perceives as bias might be fairly considered another's point of view.”

While attorneys have been making use of social media to find out more about a juror or prospective juror for at least a decade, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility this past April came out with a formal opinion regarding a juror’s online presence.

The committee said passively reviewing a juror or potential juror’s online presence is fair game.

“Unless limited by law or court order, 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 reads.

The American Bar Association said the passive viewing of a public social media page is akin to an attorney driving by a juror or prospective juror’s house to try and formulate a profile of who the person is.

Bylsma said prior to social media, attorneys relied on questionnaires filled out by potential jurors, which ask things like age, sex and profession, to try and create a profile of the juror. 

They might even take additional steps to try and glean more information about jurors if they are handling a particularly substantial case.

“I can certainly imagine having a trial that was public enough you might do a little more,” Bylsma said. “You might drive by houses or at least map out addresses of people to start to make some socioeconomic stereotypes if you thought that was going to be helpful.”

There is no question social media and people’s growing online presence has changed the game, serving as a much more powerful tool for attorneys than anything they had used in the past.

While attorneys are free to peruse a juror’s online presence, they cannot communicate with the juror.

“It is the view of the committee that a lawyer may not personally, or through another, send an access request to a juror,” the opinion reads. “An access request is an active review of the juror’s electronic social media by the lawyer and is a communication to a juror asking the juror for information that the juror has not made public.

“This would be akin to driving down the juror’s street, stopping the car, getting out, and asking the juror for permission to look inside the juror’s house because the lawyer cannot see enough when just driving past.”

An access request does not include if a social media site generates a notification to a person telling them their profile has been viewed. For instance, when someone’s LinkedIn profile is viewed, that person would be able to see who has viewed it and that is not a violation.

The committee did suggest judges make clear to jurors the possibility that an attorney from the case might view their social media pages.

“Equally important, 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,” the opinion said.

Judges can place tighter restrictions on attorneys concerning social media searches if they see fit.

In fact, the Association of the Bar of the City of New York Committee on Professional Ethics decided a network-generated notice to the juror that the lawyer has reviewed the juror’s social media constituted a communication from the lawyer if the lawyer was aware the social media site notifies users when their page is viewed.

The best defense for jurors who don’t want attorneys snooping on their social media pages, of course, is to make sure all social media accounts are set to private and to stay abreast of privacy changes the sites enact.

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