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In 2014, the American Bar Association issued a formal opinion allowing attorneys to "passively review a juror's or potential juror's Internet presence" for posts made before and during trial, unless otherwise prohibited by law or court order. However, an attorney's review is limited to what is publicly available. Attorneys are prohibited from sending friend requests to prospective jurors to access private information, so the usefulness of a juror's profile is largely dependent on his or her privacy settings.
Not only is "Facebooking the jury" allowed, it may even be considered an ethical duty. Comment 8 to Rule 1.1 of the ABA Model Rules of Professional Conduct requires lawyers to stay up to date on changes in law, "including the benefits and risks associated with relevant technology," to maintain competence in representing their clients. The benefits of conducting social media searches largely outweigh the risks, especially if the other side has already done their due diligence. Researching allows attorneys to learn about the views and lifestyles of prospective jurors in order to formulate more targeted questions for voir dire. The information gathered beforehand can also be used to challenge jurors who lie during questioning. Once the jury is empaneled, attorneys can also use the profiles to help craft arguments and illustrations that would more likely resonate with the jurors.
The main argument against (as John Browning calls it) voir Google is the protection of jurors' privacy. Judges that have prohibited the use of social media say that such research would have "a chilling effect" on jury service because it would make jurors uncomfortable about information attorneys could potentially find and therefore less likely to report to jury duty. However, a 2016 study by trial consultant firm Vinson & Company showed that 82% of respondents expected attorneys to conduct Internet searches of prospective jurors. Only 21% voiced actual disapproval of the practice because they believed it was an invasion of privacy. With dramatized courtroom scenes in popular culture (See How to Get Away with Murder), it is possible that potential jurors already have (probably inflated) expectations of the tactics attorneys use.
Like University Career Services advise students across the country, whatever you post on social media is fair game. If someone is willing to post something for the whole world to see, it should be available for attorneys to look at during voir dire, just as employers research their potential employees. Although an attorney's search is technically limited to publicly available information, there are definitely some people with CIA-level sleuthing skills that can find out anything about anybody, the frontrunners of a new type of legal research.
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