American Bar Association has determined online searches are ethical
By Sudhin Thanawala
Associated Press
SAN FRANCISCO (AP) - Mining prospective jurors' Facebook, Twitter and other social media accounts is common practice for many attorneys looking to spot biases that might cost their clients a fair trial.
The American Bar Association has said the searches are ethical, and a ruling by the Missouri Supreme Court bolstered arguments that attorneys have a duty to do online research of prospective jurors. Still, some judges have deemed the online searches invasive and banned them.
Now, a federal judge's ruling in a copyright battle between Silicon Valley heavyweights Oracle and Google has reignited debate about the practice while also offering a potential middle ground.
U.S. District Judge William Alsup, raising concerns about prospective jurors' privacy, said attorneys could research the jury panel, but would have to inform it in advance of the scope of the online sleuthing and give the potential jurors a chance to change online privacy settings.
Otherwise, they had to agree to forego the searches.
Alsup said prospective jurors are not "celebrities or public figures ... but good citizens commuting from all over our district, willing to serve our country."
"Their privacy matters," the judge said in March.
Attorneys for Google and Oracle agreed to do without the searches.
The ruling prompted a fresh wave of discussion in legal circles about how aggressively attorneys should be allowed to investigate jurors' online personas and how beneficial the searches are.
"What Judge Alsup has done is truly unique," said Thaddeus Hoffmeister, a professor at the University of Dayton School of Law who studies the impact of social media on the legal system. "This may be a route other judges suggest going forward."
Prosecutors in a recent criminal case accusing FedEx of drug trafficking requested that a judge issue the same ultimatum as Alsup. FedEx objected, and the issue became moot after the judge, not a jury, heard the case. All charges were dismissed against the shipping giant in June.
"We as a society want the attorneys and litigants to know enough about these people so they can legitimately get rid of those who know about the case or have a bias," said Greg Hurley, a lawyer who studies juries at the National Center for State Courts. "On the other hand, we don't want people digging into the jurors' private lives."
Paula Frederick, who chaired the American Bar Association committee that in 2014 gave the green light to researching jurors' social media sites, said people understand their postings aren't private.
The association's opinion said passively reviewing a juror's sites is just as acceptable as driving down the street where the person lives to "glean publicly available information." But lawyers cannot try to get additional information by "friending" or otherwise requesting access to a site from the juror, the ABA said.
The ABA noted that attorneys monitoring social media sites during a trial might find jurors in violation of court rules against discussing a case online. Internet use by jurors has led to mistrials and overturned convictions around the country.
Prospective jurors aren't always forthright when questioned by attorneys during the traditional juror vetting process known as voir dire, so checking their social media sites can also help spot inconsistencies, said Jeffrey Frederick, a jury consultant at the National Legal Research Group Inc., a Virginia-based legal services firm.
The Kentucky Supreme Court in 2012 ordered a hearing after a man convicted of murder and driving while intoxicated in a crash that killed an 11-year-old girl later discovered evidence that two jurors were Facebook "friends" with the girl's mother. One of the jurors said she was not on Facebook during voir dire, and neither responded to a question about whether they knew the victims or their families. The court eventually ordered a new trial on different grounds.
There are also limitations to online digging. Attorneys generally get a list of the jury pool selected for their case days in advance. But the lists can have hundreds of names, making the online research time-consuming and costly, said Frederick, of the National Legal Research Group.
"There is a cost-benefit analysis," he said. "At what point do we do research on a whole bunch of people?"
Privacy settings also allow people to limit their online exposure.
The Missouri Supreme Court in 2010 said attorneys must check an online database to see whether a prospective juror has filed any lawsuits. The court tossed out a verdict in favor of a doctor in a medical malpractice lawsuit after the plaintiff's attorney discovered one of the jurors had been a defendant in multiple debt collection cases and a personal injury case.
Robert Gibson, a New York attorney with the firm Heidell, Pittoni, Murphy and Bach, said the Missouri case shows the importance of thoroughly vetting jurors' online profiles in advance to avoid wasting a court's time and money on jurors who are not suitable to serve, and supports the thinking among some attorneys that it's their responsibility to fully investigate potential jurors.
"If you have the opportunity and you're not reviewing all publicly available information with respect to a juror, are you doing the right thing for your client?" he said.
Published: Tue, Jul 19, 2016
