We recently read that one of the jurors in the Jodi Arias murder trial had both tweeted at a famed criminal defense attorney and posted a comment about Arias having “Latina blood” on her Facebook page after the jury had convicted Arias but before it had sentenced her. Stories like this one really highlight the importance of investigating jurors both before they are empaneled and throughout the trial, and social media makes it that much easier for attorneys to investigate a pool of potential jurors quickly.
However, attorneys and their investigators must be cautious when vetting jurors via their social media use. As a guiding principle, attorneys and investigators should steer clear of using social media in any manner which would cause an attorney or investigator to “communicate” with the potential juror in some form. For example, in New York, you can’t “friend” or hire someone to “friend” a potential juror on Facebook in order to get access to their page. If, however, they have a publicly available Facebook page, there is no problem accessing it to gather information.
Things get a little murkier when dealing with LinkedIn. Depending on the attorney or investigator’s LinkedIn settings, a juror may be alerted when the attorney/investigator views his or her LinkedIn profile. New York bar association ethics opinions indicate that this alert to the juror, even if inadvertent, may be an improper communication on the part of the attorney/investigator. At the very least, a juror’s impression of the case may be impacted by knowing that one side’s attorney investigated his or her background. Before checking out a potential juror’s LinkedIn page, investigators and attorneys should make sure that their account is set to view profiles anonymously.
Investigation of jurors shouldn’t necessarily stop once the jury is empaneled. Lawyers might also want to monitor juror use of social media throughout the trial. A juror’s commenting on the case in any form during its pendency, or communicating with those involved in the case, may constitute serious misconduct since most judges charge jurors not to discuss or make any comments about the case, including through social media.
Attorneys and investigators should keep in mind that the same ethical constraints that apply to pre-trial juror investigation apply to monitoring a juror’s social media activity during the trial. For instance, in light of the Arias Juror’s tweets, an attorney might want to keep up with a juror’s tweets throughout the trial. In New York, viewing the juror’s publicly available tweets is okay, but an attorney or investigator should not subscribe to the juror’s Twitter feed. Additionally, attorneys should familiarize themselves with their state’s rules of professional conduct. For example, in New York, an attorney is under an obligation to disclose to the court any juror misconduct of which it becomes aware, which might include a juror’s improper use of social media.
Finally, social media will not reveal everything about jurors. It’s unlikely that someone would brag on a Facebook page that he’d been convicted of a crime or sued by someone for breach of contract. Attorneys should be sure to also look into the criminal and litigation histories of potential jurors. These types of records are occasionally available online, and we can often find evidence of them in our proprietary databases, but on-site litigation searches are usually necessary to get a full litigation picture.