It was bound to happen sooner or later, and the latest developments are likely only the beginning of a complex and portentous unraveling.
For some time, courts have been wrestling with how to address online comments made by jurors regarding trials that they are deciding. The specific comments generating the most concern right now are those made on jurors’ social media pages—and, even more specifically, those social sites that provide some level of restricted access, such as LinkedIn, Facebook and Twitter.
Judges typically attempt to restrict jurors, often during jury instructions, from commenting about cases on social media.
However, a new social media wrinkle has surfaced: Lawyers have been scouring the Internet, including social media, to see what they can find out about jurors and prospective jurors. This growing trend has prompted the American Bar Association to issue a formal opinion about how far lawyers should go in prying into a juror’s online life.
While the ABA’s opinion is just that, the fact that it has gone to the trouble of publishing one indicates that the issues involved will likely continue to surface—until a strong enough precedent is set. Until that happens, it is wise to consider the implications of the ABA’s opinion. Like it or not, social media is here to stay for a while.
The essence of the ABA’s opinion is that a lawyer may look over a juror or potential juror’s online musings on social media and other web sites. However, the lawyer should not send those potential jurors a request to do so, because that would substantially violate a rule prohibiting ex parte communications with jurors that are not authorized by a court order or by law.
Then, things get even murkier. The ABA’s opinion notes three different levels of social footprints that lawyers may possibly review. The “mere act of observing” a profile is not considered to be improper contact, any more than, say, driving down a juror’s street would be in order to get a sense of the neighborhood in which they reside.
By the same token, lawyers should not request access to a juror’s social media account, any more than they would stop on the street to ask to see the inside of juror’s house.
And, in the event that a social site, like LinkedIn, automatically notifies the juror that their profile has been viewed by a lawyer, it is the site that is contacting the juror, not the lawyer, much as a neighbor might tell the juror that a lawyer drove down his or her street.
From there, the ABA discussion goes into far more detail than most laypeople would care to digest. Make no mistake, though: Social media profiles and comments will likely find their way into legal situations down the road. The tried-and-true advice rings ever more true now: Don’t post or send anything online that you wouldn’t want to see projected on a 12-foot-high courtroom screen.
Especially if you’re called for jury duty.
