By Robert E. Cooper, Christian & Small Partner
Social media is everywhere; approximately 67 percent of Americans with internet access use it. Social media use is consistent across racial and ethnic boundaries, educational and socio-economic boundaries and urbanity. This means that two out of every three prospective jurors are active on at least one social media platform – whether it’s Facebook, Twitter, Instagram or LinkedIn.
This brings up several things to consider when it comes to social media, ethics and jury selection. There are some benefits – it’s an outlet in which jurors can voluntarily exchange candid information, such as employment history, religious and political affiliations, age, educational background and circles of friends and acquaintances.
But it is imperative that attorneys conduct their social media analysis on potential jurors in a responsible way. Running names through a public records database and using common search engines and social media sites can be helpful. Including common name variants and remembering the importance of oral questions and/or jury questionnaires is also important. And remember: don’t believe everything you read.
It can be easy to cross the line though. Be sure not to violate privacy settings, don’t “friend” potential jurors, or do anything that would make you an enemy of the judge.
When using social media in the jury selection process, do your research in advance and perform real-time research. Enlisting the help of jury selection consultants can also be beneficial.
So is there an ethical duty for an attorney to investigate jurors’ responses on voir dire? In Missouri, at least, the answer is yes. Missouri Supreme Court Rule 69.025 requires the attorney to research a juror’s litigation history. Missouri has a free and easily accessible system to search for past litigation. This rule arose out of a case where a juror’s nondisclosure would have been easily found on case record system before the verdict.
No other state has a similar rule, but a case in Alabama in 2012 does suggest it, saying “[T]he evidence which was presented to the Court during the hearing on Defendants’ post-judgment motions was all a matter of public record. Were Defendants genuinely concerned before the trial or before the verdict was returned about the prospective jurors’ participation in prior bankruptcies and the like, they could have and should have looked at the available public records prior to or during the trial and afforded the Court an opportunity to take measures to address any concerns rather than waiting for a verdict to be returned, the jury discharged and a judgment entered on the verdict.”
At least one Kentucky case has implied that a party did not have a duty to search Facebook after a juror responded “no” to the Judge’s direct question as to whether anyone was “on Facebook.” The juror lied, and was “friends” with the victim’s mother on Facebook.
But what if an attorney becomes aware of certain facts during trial that indicate a juror has failed to disclose material information during voir dire? In criminal trials, the Sixth Amendment guarantees the right to an impartial jury. In civil and criminal trials, great expense can be lost if the defendant waits until after the verdict to raise the issue.
Consider the following example. During the course of a criminal trial, defense counsel found information that, upon reasonable investigation, would reveal that a juror has misrepresented in voir dire the following:
• Her status as a suspended lawyer;
• Her address;
• Her and her husband’s criminal history; and
• Her past litigation history
Does defense counsel have to investigate the possibility of nondisclosure and disclose to the court and the prosecution the juror’s suspected misrepresentation? Absolutely. There was sufficient information to determine the existence of falsehoods. A report was generated during the trial that should have spurred at least further investigation and certainly disclosure of suspicion. In this example, the defendant’s request for a new trial was denied. The constitutional right to an impartial jury was waived by the counsel’s conduct. However, the other three defendants who did no research did get new trials.
This example was particularly egregious because there was significant expense involved with three months of trial, 9,200 pages of testimony, 41 government witnesses, 22 million documents during discovery, 1,300 exhibits, nine days of jury deliberations and $110,569.85 in jury attendance and travel fees.
Another ethical issue that arises is the question of whether there is an affirmative obligation to report known or suspected juror misconduct. Currently, there is no Alabama Rule of Professional Conduct that directly addresses a lawyer’s affirmative duty to report juror misconduct. The Preamble to the Alabama Rules of Professional Conduct states that, “Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an upright person while earning a satisfactory living … within the framework of these Rules many difficult issues of professional discretion can arise.” The Preamble also points out the rules are “rules of reason” – to protect the integrity of the court, Rules 3.3, 3.4 and 3.5 inform the decision to make the court and other counsel aware of juror misconduct at the earliest opportunity.
Questions can also come up about whether there is an affirmative obligation to report a relationship between a juror and a party or lawyer. Alabama Rule of Professional Conduct 3.5 clearly prohibits ex parte communication with a juror. Doing so runs the same risk of waiving objections and arguments on appeal. Again, Rules 3.3, 3.4 and 3.5 provide guidance so that the integrity of the court is preserved. But a relationship does not necessarily mean a juror will be dismissed. In a 1999 Alabama criminal case, the court did not err in failing to remove a juror who stated during voir dire that the victim and her husband were distant cousins, but that this relationship would have no effect on her ability to make a decision based strictly on the evidence because she had no personal relationship with the victim or his family.
It’s up to the lawyer to maintain the requisite knowledge and skill to stay abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. Best practices include investigating properly before the trial, during voir dire, during the trial and after the trial. Ask the court for social media jury instructions, and disclose connections and improper contacts or conduct.