To Google or Not to Google: The Ethical Dilemma of Researching Jurors

Attorneys seek to learn everything that they can about potential jurors before voir dire and during trial. One way that attorneys seek to obtain this information is through googling jurors and checking their social media accounts. However, this may present an ethical dilemma. What exactly is allowed? Can someone who is not a attorney but is associated with the trial team contact the jurors via social media? What happens if there is evidence of online misconduct by the jurors during trial?

Researching jurors using the internet and social media has largely become the new norm for trial attorneys. There are even opinions that failing to research jurors electronically may be a competence issue for attorneys. However, what lawyers are allowed to do while researching jurors online largely depends on the jurisdiction in which the lawyer is practicing and may even come down to local rules with particular judges. For example, Judge Gilstrap of the Eastern District of Texas expressly allows researching of jurors. The only limit is that attorneys, parties and their respective employees and agents, including jury consultants, are prohibited from contacting jurors on social media. In New York, the state bar association has informed attorneys that in addition to being prohibited from proactively contacting jurors via social media, they must also ensure that there is no automatic notification sent to the juror by the social media service that would alert jurors that they are being scrutinized by the trial team.

Another issue concerning researching jurors on social media is: what happens if a juror is discussing the case online during the trial? Is this online misconduct grounds for a mistrial? Once again, this issue seems to be largely dependent upon the jurisdiction in which you are practicing.

For example, a recent New York State Court of Appeals decision set aside a jury verdict because throughout the trial a juror sent and received hundreds of text messages about the case and accessed local media websites that were covering the trial extensively. Further, the juror lied under oath to the court about their outside communications. Due to this demonstration that the juror could not be objective and forthcoming, the court affirmed setting aside the jury verdict.

However, in Texas there is a higher hurdle for juror misconduct to affect the outcome of a case. In order to receive a mistrial on the basis of juror misconduct, the movant must establish that the misconduct occurred, that it was material and that the misconduct probably caused injury. For example, a juror researching a defendant’s prior criminal history in an aggravated sexual assault of a child case did not meet the standard for a mistrial because the juror did not share the information with other jurors. As such, this did not affect the jurors’ ability to fairly judge the defendant. With these standards in mind, it appears that if a juror in Texas was posting about their ongoing trial on social media, the movant would have to show that this misconduct was material and injured them by affecting the jurors’ ability to fairly judge them. Absent such a showing, it is unlikely that a mistrial would be declared.

While attorneys seek to learn all they can about jurors, they should be sure that they understand the ethical rules of their jurisdiction surrounding researching jurors electronically before they do so. Further, any instances of juror misconduct on social media is potentially tremendous, so attorneys should monitor jurors’ social media during trial if they are ethically allowed to do so.