You might not be able to make 500 million friends without making a few enemies along the way1, but you can learn a lot about all your friends and enemies from what they post on their Facebook or Twitter pages. But what could lawyers learn about jurors through social media, and what problems might arise from an attorney's use of social media sites to learn more about jurors and potential jurors?
Social Media as a Jury Research Tool
At first, using social media data to learn more about jurors can be a daunting task – and even more so when it comes to studying potential jurors in preparation for voir dire2. Extensive data is compiled across different social media sites, and it can be inefficient to sift through it in certain circumstances3. For instance, if names of venire members are only given shortly before voir dire begins, too much time would be spent just trying to verify that a social media account was the correct one related to a (prospective) juror to even begin learning anything from it. But a lot of information can still be gained from social media, even as a simple jumping-off point, both during and after jury selection.
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, and time may be limited during the voir dire jury selection process, information listed on a person's Facebook page – like their relationship status, job, religion, political leanings, and even their education – can provide valuable information and a starting point on those who might be selected as jurors, especially in cases without jury questionnaires4.
Jurors' specific interactions with other users and other posts can also give attorneys quick insight on potential jurors5. Twitter, for instance, allows users to see the posts a public profile has 'liked.' Facebook's post interaction potentially offers more context, allowing potential jurors to not only like, but also love, dislike, indicate sorrow, and even laughter. Interactions with posts like local news articles or opinion pieces, especially relating to a topic the trial may center on, can give attorneys a powerful glance into a potential juror's feelings on the subject6. This information can create a great starting point to tailor voir dire questions and to gain a jump start on understanding the potential jurors a little better7.
Gaining Insight on the Jury
A tailored and filtered approach yields the best results when examining jurors' and potential jurors' beliefs and backgrounds8. While this often requires time and resources unavailable during jury selection, 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 jurors' interests to better tell the client's story9. By crafting a more relatable theme or telling the client's story so that more jurors can relate to it, an attorney might find that a previously apathetic or unfavorable juror is now sympathetic to the client and able to see the case from the client's perspective10.
Going past social media can also be extremely helpful post-selection11. Conducting a broader internet search of potential jurors can reveal information about a person's family status, political party registration and campaign contributions, and potential wealth valuation12. More information, such as bankruptcies, liens, civil cases in general, criminal history, professional licenses, and incorporation filings, can be gleaned about potential jurors through online subscription databases13.
Ethics and Social Media Research
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 tribunal14. Attorneys must avoid inappropriate communications with jurors, including attempting to influence jurors, harassing jurors, sending unwanted communications to jurors, and communicating with jurors ex parte15.
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 settings16. This would be exactly the type of ex parte and unwanted communication that Rule 3.5 guards against17. As always, make sure you are aware of your state's or other local jurisdiction's ethical rules before using social media to research jurors.
Footnotes
1. Kayla Wembley, The Top 10 Everything of 2010, TIME (Dec. 9, 2010) (quoting the tagline of The Social Network (2010)).
2. Jury Analyst, Social Media in Jury Selection: Good or Bad? (January 13, 2021), http://www.juryanalyst.com.
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 (Feb. 2012).
10. Id.
11. 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.).
12. Id.
13. Id.
14. Miles Hutton, Using Internet Research to Get to Know Your Prospective Jurors, JD SUPRA (May 13, 2021).
15. Sonia Chopra, Using the Internet and Social Media in Jury Selection, PLAINTIFF MAGAZINE (Feb. 2012).
16. ABA Comm'n on Ethics & Pro'l Responsibility, Formal Op. 466 (2014).
17. Id.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
