How Social Media can be Used as a Tool to Learn More About Jurors

Photo by Nathan Dumlao on Unsplash

            You might not be able to make 500 million friends without making a few enemies along the way,[1] but you can learn a lot about all your friends and enemies from what they post on their Facebook or Twitter page. So, what can lawyers learn about jurors through social media, and what problems might arise from using social media sites to learn more about jurors and potential jurors?

At first, using social media data can be a daunting task to learn more about jurors – and even more so when it comes to potential jurors in preparation for voir dire.[2] Extensive data is compiled across different sites, and it can be simply inefficient to sift through it in certain circumstances.[3] For instance, if names of veniremembers are only given shortly before voir dire begins, too much time would be spent just trying to verify that the social media account was the correct one to even begin learning anything from it.  But there can still be a lot to gain from social media, even as a simple jumping-off point, in both jury selection and insight on the selected jury.

Jury Selection

People love to post on social media about everything from their thoughts on national issues to the best Thanksgiving recipes. While some of this information might not be useful, a lot can give attorneys more insight on who they might be selecting to be on the jury panel. Of course, during the jury selection process, voir dire, there might not be much time to dig through posts on specific topics.[4] But even still, things like a person’s relationship status, job, religion, political leanings, and education may all still be listed on a person’s Facebook profile page.

Another aspect of social media that can give attorneys quick insight into potential jurors during, or in preparation for, voir dire is the jurors' interactions on the social media site with others and other posts.[5] Twitter, for instance, allows other users to see the posts a public profile has ‘liked.’ Facebook’s post interaction is more robust and may potentially offer more insight than Twitter’s simple ‘like’ feature because Facebook allows for potential jurors to not only like, but love, dislike, indicate sorrow, or even laughter. Interactions with posts like local news articles or opinion pieces, especially relating to the topic the trial may center on, can give attorneys a powerful glance into a potential juror’s feelings.[6] This information can create a great starting point to begin tailoring voir dire questions and gain a jump start on understanding the potential jurors a little better.[7]

Gaining Insight on the Jury

When trying to gain insight into jurors' and potential jurors’ beliefs and backgrounds, a tailored approach and filtered approach yield the best results.[8] But this often requires time and resources that aren’t available during jury selection, but those resources may be at hand once the jury is set. At that point, the data serves to guide arguments, trial strategies, and strategies on evidence presentation.

Jurors may indicate things about their interests or beliefs that can be used to craft appealing trial themes, allegories, or stories that relate to the juror’s interest to better tell your client’s story.[9] This is also an opportunity to take a juror that you believed to be apathetic or unfavorable to your side during voir dire and find something that will relate to the juror, ultimately making them now sympathetic to your case.[10]

Going past social media can also be extremely helpful post-selection.[11] Doing a broader internet search of potential jurors can give information about a person’s family status, political party registration and campaign contributions, and potential wealth valuation.[12] More information, such as information about bankruptcies, liens, civil cases in general, criminal history, professional licenses, and incorporation filings, can also be gleamed about potential jurors through online subscription databases.[13]

Ethics

            Before diving into the endless sea of the internet and social media sites, it’s important to be mindful of any ethical rules and adhere strictly to them – always erring on the side of caution. The ABA Model Rule 3.5 charges attorneys with maintaining the impartiality and decorum of the court or tribunal.[14] This includes avoiding any inappropriate communications with jurors that might be an attempt to influence them, harass them, that would be unwanted, or that would be made ex parte.[15]

            But the ABA’s stance in Formal Opinion 466 is that attorneys can access potential jurors’ and jurors’ social media accounts, but they cannot send access requests, use others to send access requests, or circumvent privacy settings.[16] This would be exactly the type of ex parte and unwanted communication that Rule 3.5 guards against.[17]

            Social media can be a fantastic tool in many facets of society, including litigation strategy and jury selection. There is a treasure trove of knowledge that we make available to the public through social media platforms as a way to connect with others that can also be extremely helpful to trial attorneys hoping to learn more about what kind of juror you might be. But social media also comes with its own privacy and ethical concerns, so always stay mindful of the professional ethical rules before using social media as a tool to gain insight into who might be comprising the jury.

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[1] Kayla Wembley The Top 10 Everything of 2010 Time (December 9, 2010) (quoting the tagline of The Social Network (2010)).

[2] Jury Analyst Social Media in Jury Selection: Good or Bad? Juryanalyst.com (January 13, 2021).

[3] Id.

[4] Id.

[5] Jeffrey T. Frederick, PhD Using Social Media News Posts in Jury Selection (and More) National Legal Research Group, Jury Research Services Division (June 12, 2019, 3:06 p.m.).

[6] Id.

[7] Id.

[8] Miles Hutton Using Internet Research to Get to Know Your Prospective Jurors JD Supra (May 13, 2021).

[9] Sonia Chopra Using the Internet and Social Media in Jury Selection Plaintiff Magazine (February 2012).

[10] Id.

[11] Hutton, Supra.

[12] Id.

[13] Id.

[14] ABA Model Rules of Pro. Conduct 3.5.

[15] Id.

[16] ABA Comm. on Ethics & Pro. Resp., Formal Op. 466 (2014).

[17] Id. 

Juries and Social Media

John Browning, an eminent trial attorney based in Dallas, TX, recently wrote an article about the American Bar Association’s Formal Opinion 466.  The opinion 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. A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media.”  Mr. Browning believes not only are lawyers obligated to research potential jurors via the Internet, but it may be malpractice if they do not. 

I completely agree with Mr. Browning, especially because comments made online by jurors during and after the trial could lead to a mistrial.  Recently, in Michigan a defense attorney filed a motion for mistrial in a case where a man was found guilty of first degree murder for shooting and killing his childhood friend.  The defense attorney suggested that one of the jurors during the trial made a comment that tainted the verdict and requested a new trial.  The attorney stated that it was only after his 26-year-old son wondered aloud what the jurors might be saying on social media that he was prompted to check. According to the exhibits filed with the motion, during the trial the juror posted on Facebook, “Not cool a young man is dead another young man will be in prison for long time maybe.”  But, the judge denied the motion stating that the comments were innocuous.   

Moreover in a Florida court, another juror was not as fortunate.  He was held in contempt of court and taken out of courtroom in handcuffs.  He faces six months in jail for posting comments on social media after not obeying a judge’s order to refrain from posting personal opinions about the trial online.  The case proceeded forward, however, as a new juror replaced the former juror.

There is a definite and alarming trend of jurors using social media during trials.  It is estimated that over two-third of Internet users use some form of social media in their personal lives.  Judges have used various forms of punishment to alleviate the problem such as removing the juror, declare a mistrial, hold juror in contempt of court, or fine the juror.  There is no universal jury instruction disallowing the use of social media during and after a trial because each state has its own form of instruction.  Here is sample of states with such jury instructions.  Texas’ jury instruction concerning prohibiting juries from using social media can be found here.  Dallas County Courts list a number of prohibited items that cannot be brought into the courtroom by a potential juror.  However, smartphones, tablets, and other forms of communication are not prohibited.  Maybe they should be in light of these cases listed above!

Even though courts have the ability to prohibit juries from accessing social media during the course of a trial, it is very difficult to do so after.  With the proliferation of smartphones and other electronics and the increase use of social media, this is a challenge that our justice system is going to have to deal with in the coming decades.