It is Fine to Use Social Media to Engage in Jury Research- Says the New York City Bar Association
I breath a sigh of relief today, because for several years I have been telling lawyers it is fine to research a juror on social media. I didn’t pull this idea out of my….mind, I had some logical basis for it, but all the same, I am always pleased to have a bar association back me up, and the NYCBA has done so. The Bar addressed several issues relating to juror research and social media, and they all support the idea of using social media to research jurors, as long as the lawyer does not communicate with the juror, and reports any misconduct she sees.
In Formal Opinion 2012-2 “Jury Research and Social Media,” the Bar looks at several issues.
- “Ex parte attorney communication with prospective jurors” is not ok. This doesn’t change, and so it is important to remember not to communicate with jurors.
- Researching Jurors using Social Media is fine. Just don’t communicate with members or prospective members of the Jury.
- The communication does not need to be intentional to violate the rule. It “prohibits all communication.”
- “A request or notification transmitted through a social media service may constitute a communication.” This means it is crucial that lawyers understand what happens when they research or act on social media. For example, on LinkedIn it might inform the juror that you looked at his profile. On Facebook friending will cause a communication to go to the juror.
- Attorneys “may use search engines and social media services to research potential sitting jurors without violating the Rules.”
- While the Committee repeatedly says attorneys must avoid communication, it specifically states that it, “takes no position on whether…inadvertent communication would in fact be a violation of the Rules.” So again, attorneys and their staff must make certain they understand what will happen as they are conducting their research.
- The attorney must be cautious not to engage in any deception while researching Jury members via social media.
- An attorney cannot cause a third party to do something he may not do.
- It is fine to research sitting jurors on social media and the web. Again, the opinion stresses that even inadvertent communication at this stage could cause a mistrial, and so attorneys must understand what they are doing.
- If an attorney or his staff notes improper juror conduct on social media, he must report it to the court. So, if a juror posts about the case, the attorney needs to report it.
- It is ok to communicate with a juror after the case has been concluded, assuming the attorney obeys all other related rules.
What Does this Mean for Jury Research?
Well, it seems to me it is pretty straight forward.
- Attorneys and their staff must understand social media and how it works before they attempt to research jurors on social media.
- Attorneys and their staff must avoid all communication, even inadvertent communication, with jurors while engaging in research
- Attorneys and their staff must be honest if they do communicate with jurors after the trial is complete
- Attorneys must report any misconduct they discover while engaging in jury research
So, folks, have at it. You will likely find very useful information to help with your voir dire, and you might even discover misconduct. Just make sure you know what you are doing first.