Social Media Juror Stalking: Continued

To augment on the discussion initiated by my classmate, Shaq Grant, I further evaluate the ethical dilemmas and benefits of using social media to research jurors prior to jury selection. 

As Shaq discussed, the rules concerning the use of social media to research jurors is governed primarily by the judge presiding over any given case. Judges often set particular rules instructing parties and jurors on acceptable social media use as well as warning of the dangers of inappropriate use. For examples on either end of the spectrum of restrictiveness, see Shaq's Texas and New York case studies.

The ABA has expressed its views on the practice and in fact issued a formal opinion (466)  laying out the particular guidelines. Summarily, in deciding what practices to allow, the ABA and local judges must weigh the ethical implications of juror research with the protections necessarily afforded to jurors in not being approached by parties to the suit. The committee recognizes that there is a strong public interest in identifying jurors who are tainted by bias and recognizes social media's ability to aid in these efforts. After all, people may be less vigilant about what they post, follow, or like on social media compared to how they answer questions by a lawyer in voir dire. On the other hand, however, jurors have a right to be let alone throughout the process and to be untainted by outside factors when it comes time to make their decision.

Courts, as well as the ABA, seem to have drawn a line with regard to this practice, though. Most jurisdictions allow parties to view and research jurors using social media, however, prohibit "friending", notifying, or request additional access of a juror. The ABA's opinion 466 states, "(u)nless 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 ABA even goes so far as to recognize that undergoing this research may be a requirement of lawyers in the course of adequate representation and that a failure to do so may rise to the level of a competency issue. With people spending hours a day on social media, our social media footprint, especially that which is viewable by the public, has become a version of a first impression, and failing to detect this activity may render representation of a client inadequate.

One Federal judge has recently demonstrated a more restrictive view, allowing parties to research jurors prior to jury selection but requiring that they inform jurors as to their intent to use the platforms as well as the scope of their intended use in order to give jurors the ability to modify their privacy settings. Some judges are following Judge William Alsup's lead, while others, including the ABA, see social media stalking as "gleaning publically available information."

So, what level of social media use is acceptable? As social media stalking continues to become integrated with the modern practice of law, more guidelines will continue to appear to restrict social media use.

What can we do? As a lawyer, it's important to respect the privacy of jurors and grant people the opportunity to censor their social media presence. At the same time, we have a duty to adequately represent our clients, which includes the elimination of bias that may negatively impact a juror's assessment of our clients.

Social media can be a great tool, but also a powerful weapon; and it's important that we, as ethical professionals, know which side of the line we're on.