Juror Profiling: The Dangers of Social Media

Attorneys have likely catered their arguments to jurors for as long as Juries have existed. During the colonial era, Andrew Hamilton once infamously defended a charge of Libel waged against John Peter Zenger by appealing directly towards the colonists’ desire for liberty. Zenger’s guilt was clear to all parties involved: he had published an article in the New York Weekly Journal condemning the royal governor William S. Cosby as a corrupt and incompetent official; he made no attempt to deny the publication; and guilt for the crime of libel solely rested on whether Zenger had published information that was opposed to the government. Hamilton made no attempt to argue that Zenger was not guilty of Libel, but instead, he argued that the crime of Libel could exist in England but should not exist in the same way in the Americas. He appealed directly to the colonists’ burgeoning desire for Liberty claiming that the colonists were not “obligated to support a governor who goes about to destroy a province or colony.” Hamilton won the case and Zenger was found not guilty within ten minutes because Hamilton had correctly identified that the New York colonists were dissatisfied the English government and directly appealed to their sense that the Americans should not be beholden to the English rule of law.  

            The practice of attorneys catering their arguments directly to jurors’ sensibilities has slowly evolved over time. Today, it is standard practice amongst high stakes cases for attorneys to hire local counsel to advise attorneys about the arguments that will be well received by the local a judge and jurors. The advent of social media, however, has significantly altered the landscape of how attorneys perceive their local jurors. It has allowed attorneys to individually profile perspective jurors even before the jury selection. According to Pew Research, 69% of all Americans actively use Facebook and 74% of those users use the site daily. The American Bar Association’s Formal Opinion 466 allows attorneys to review “by the juror or potential juror in advance of and during a trial” as long as attorneys do not communicate directly or through another with the jurors or potential jurors.

            Although the ABA rules allow significant latitude towards an attorney’s use of social media, the practice of using social media to profile jurors is inherently unfair for lower-income clients. For example, public defenders do not have the time or resources to attempt this practice as they often do not have the resources and time to even build proper defenses. Similarly, since most attorneys charge by the hour, lower-income clients likely cannot afford additional services such as juror profiling using social media.

The purpose of a jury is to have an unbiased selection of a community judge a particular case, yet the use of social media has the ability to completely subvert these base principles. However, the use of social media to profile prospective jurors has the potential to drastically affect the overall jury verdict. Attorneys have a limited time to question jurors before the jury selection and it is human nature to not recognize one’s own personal biases. Yet social media has the ability to completely change the entire jury selection process. AIs can be trained to individually evaluate a prospective juror’s entire social media profile down to the level of the particular phrasing in a prospective juror’s individual posts. Although juror profiling through social media is still in its infancy, it is easy to see how the use of social media can create a clear unfair advantage for lower-income parties. When one party has the time and funds to investigate and determine a prospective juror’s stance on a wide range of social issues, family status, and individual relationships, that party may be able to easily predict a juror’s stance on the matters at issue without the use of jury selection. This gives that party a clear advantage in jury selection since their entire research process is not conducted in the presence of the court and the party has no obligation to inform the other side of the fruits of their research. Thus, the use of social media to profile jurors runs the risk of undermining our jury system by allowing one party to fill a jury with jurors receptive to their arguments completely without the other party's knowledge. Although this jury should not result in a completely unfair trial, it creates a distinct and undeniable advantage that has the potential to not conform with our American ideal of a fair trial.