Social Media Use Before and During Trial

Often, the fate of your client is in the hands of a group of strangers. These strangers, aka jurors, will determine whether your client is guilty or innocent, liable or not. Sure, jurors’ decisions are based on their evaluation of the evidence, credibility, and the law but verdicts are also reached due to juror bias, personal experience, or tendencies. Thus, the process of selecting a jury is critical and attorneys utilize various methods and strategies in picking only those strangers more likely to decide in their client’s favor. Given that a large population of the juror pool utilizes social-media, it may be tempting for attorneys to tap into this wealth of information during voir dire and throughout the trial. Before checking out a would-be juror’s Facebook profile, however, consider the following.

The ABA recently issued a formal opinion that provides some guidance as to the ethical limitations of utilizing social media before or during trial. Formal Opinion 466 which is based on the Model Rules of Professional Conduct discusses commonly used social media websites in conjunction with juror selection and details permissible conduct.

First, the opinion concludes that an attorney may peruse jurors’ social-media content. According to the opinion, the act of “observing” a juror’s profile is not improper ex parte conduct.

Next, the opinion concludes that an attorney may not request access to the juror’s social-media website during litigation. The ABA suggested that such impermissible conduct is akin to an attorney asking to see inside a juror’s house or car.

Finally, the opinion considered the implications of when a juror receives a social-media notification that the attorney viewed the juror’s profile during the course of trial. The opinion makes concludes that such notifications do not amount to impermissible communications from the lawyer.

The opinion clarifies that attorneys may use social media during jury selection and trial subject to certain limitations. Given that this is a developing area of the law, and technology is constantly advancing, the issues are often murky. Thus, attorneys should exercise caution when using social media before or during trial and should stay up-to-date with the local ethical rules before vetting the jury pool.