Social Media: The Double-Edged Sword

Technology and social media are taking over the way people gather information on a daily basis. If you want to know more about someone you start by googling them. You might then turn to their LinkedIn page or their Facebook page. Next, you might glance at some tweets they tweeted or retweeted. Then you might see if their Instagram sheds more light on who they are. It is no different in the courtroom; both attorneys and jurors alike are tempted to bite into the forbidden fruit--social media. While it is not always unacceptable to use social media to further one’s knowledge of a case, social media poses challenging issues and questions. One of those issues is: why are lawyers allowed to learn extra information about jurors via social media and expect jurors not to learn more about defendants in the same way?

May Lawyers Use Social Media to Research Potential Jurors?

• An article by the American Bar Association asserts that it is permissible to review social media pages of potential jurors as long as they are PUBLIC. 
• This stems from Model Rule 3.5(b), which does not allow attorneys ex parte communication with jurors.
• Some states require stricter rules when lawyers are accessing juror information on social media.
•  New York ethics guidelines suggest that if a lawyer is going to perform research on jurors using social media, it MUST be in a way the juror cannot tell that the attorney has viewed their social media page (aka don’t leave a footprint). 
• Conflicting advice is perceived by Model Rule 1.1. This rule requires competence and preparation by an attorney, which can be read to include adapting to technology changes and doing all of the digging that they can on panel members. 

Is it Juror Misconduct if the Panel Uses Social Media to Research the Defendant?

• Iowa Court of Appeals held that there was juror misconduct when 8 out of 12 jurors either found out from Facebook or from rumors in deliberation that there were safety concerns due to potential riots based on their pending verdict.
• The trial court judge repeatedly warned members of the jury not to consult any outside sources.
• Iowa Rule of Criminal Procedure 2.24(3) allows a new trial if the jury received evidence not authorized by the court, but the trial court denied a new trial.
• Juror misconduct is grounded in the Constitution and the defendant’s right to a fair trial.
• The Appellate Court found the use of social media by jurors as extraneous evidence during deliberations to be juror misconduct AND found prejudice (meaning it influenced the verdict).
• The dissent disagreed, referencing the widespread technology available today.

What’s the Difference?

Both attorneys using social media to research panel members and jurors using social media to learn information about the case have become typical in today’s society. Ensuring that attorneys only view public information on juror’s social media pages rather than adding them as friends makes sense; however, it makes less sense compared to some courts finding juror misconduct when jurors access public information about a defendant. The only difference seems to be that lawyers are not supposed to be fair and impartial in zealously representing their client, while jurors took an oath to impartially only consider specific evidence. Lawyers are supposed to stay up to date with technology to appease the Model Rules, yet jurors are supposed to forgo all social media during trial and turn a blind eye. If technology continues to remain as important in our society, perhaps the juror misconduct rules will become more flexible. In the future, attorneys may need to address publicly accessible online materials about the defendant during the trial.

Author: Jamie-Lee Denton

Candidate for Juris Doctor, May 2019

SMU Dedman School of Law 

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