As social media continues to be a prevalent force in society serving as the main way people share information, judges and attorneys are continuously flirting with the line between finding strong information and infringing on individual privacy.
Information available through the internet may be indicative of the kind of juror a particular person would be. However, the broader issue is whether jurors have a constitutional right to privacy during the jury selection process. When the question has presented itself during case law issues, courts have negated to answer the question or provide a true standard for jurors. The reasoning is that Courts are concerned that by solidifying a constitutional right to privacy, a prospective juror could prolong the judicial process by asserting the right until a superior tribunal declares his expectation unreasonable or refuses to answer . . . on the ground that his privacy right outweighed the defendant's need to know. Currently, this issue has not been answered by courts, but scholars continue to debate the issue.
Thus far, studies have shown that a uniform search must be developed and applied to each juror in order to attempt to collect equal information from each juror. However, a concern that comes with performing this search for every juror is that it takes a lot of time away from other methods of collecting information to perform this search for each juror on various social media platforms. Likewise, even though there are some people that still have their social media pages made public, most people have their profiles set to private which is another hurdle for attorneys and judges to overcome.
Because of this fine line between obtaining useful information that voir dire may not reveal, and acknowledging the ethical rationale of protecting juror privacy, it is becoming more common for judges and attorneys to agree to the terms that social media will come in to play for jury selection at the beginning of the process. Even when social media research is permitted, it is not always as effective as attorneys hope. If only 35% of the jurors have their social media set to public and the attorney can access strong information, the results become skewed when the remaining majority of the jurors have protected most of their information and now the results become inaccurate and subjective at best.
In a different light, the ABA has acknowledged that navigating social media inclusion in jury selection research is an area of water that should be treaded with care. In a 2014 ABA opinion, the ABA stated that the line is increasingly blurred between an attorney's proper investigation of a juror and his improper communication with the juror. The Committee recommends that judges and attorneys discuss this and agree to terms of social media usage in jury selection, as well as to inform the jurors that their backgrounds will be looked into in this manner. The timing of this research is crucial due to the ethical implications attorneys would face due to Model of Professional Conduct 3.5(b). This rule prohibits attorneys from “communicating ex parte with a prospective juror during the proceeding unless authorized to do so by law or court order.” Recent requests for additional rules or opinions regarding social media suggested guidelines for attorneys to follow focus on this model rule for guidance. Even though a new rule has yet to be created, ethics opinion on this topic hold great weight in the minds of attorneys and greatly impact their practice decisions regarding remaining competent while using social media as a research tool.
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