Beyond Jury Selection: Why (and How) Attorneys Should Conduct Social Media Searches of Jurors Throughout Trial
It is common practice for attorneys to conduct social media searches of prospective jurors during voir dire. They engage in this practice to uncover and weed out panel members who are likely to possess biases that will prevent a fair trial. Many attorneys are unaware, however, that a fair trial can be further ensured by continuing to conduct social media research long after the jury has been selected. The trial consultants at The Focal Point advise counsel to continue to conduct juror social media research throughout the trial.
During trial, jurors are instructed not to communicate about the case with others outside the jury. This proscription includes communicating via electronic devices. Research of jurors’ social networking sites during trial can uncover whether they are engaging in these improper communications. They may, for instance, be sharing information about the court proceedings, including decisions made during deliberations. They may be receiving outside advice. They may be accessing extraneous information about the case that has not been presented in the courtroom.
While it is uncommon for jurors to defy courtroom instructions, a survey of jurors from both civil and federal cases in the Northern District of Illinois found that roughly one in 12 jurors was at least “tempted” to improperly use or consult social media during trial. It’s difficult to determine just how many jurors give in to this temptation, but it is not difficult to imagine the devastating results that social media misuse could have on a party’s case. What’s more, unfettered juror electronic misuse could reduce the public’s faith in the justice system.
The trial consultants at The Focal Point believe, in order to assure that jurors are not improperly communicating electronically during trial, it is good and necessary practice for attorneys to research jurors’ social media accounts for the duration of trial. We believe this practice can be performed ethically, with little distress caused to jurors. In this article, we highlight two cases in which attorney social media research during trial proved valuable. We also present guidelines for how to conduct this research. We discuss ways to prevent social media misuse by jurors. Finally, because we are aware that forbidding jurors to use social media while at the same time using social media to research the jury can seem wholly unfair, we discuss how to make the situation more palatable for jurors.
A. Dimas-Martinez v. State
The Arkansas case Dimas-Martinez v. State showed the importance of keeping a vigilant watch over jurors by accessing their social media accounts during trial. During the capital murder trial of Erickson Dimas-Martinez, social media research enabled defense counsel to discover the content and timing of a juror’s internet posts. Using Twitter, the juror made public comments about the progress of the case. For instance, after the state’s rebuttal case, he made a veiled reference indicating the time had come for him to make a weighty decision. Despite being reprimanded by the court for this action, he tweeted twice during deliberations. At the end of sentencing deliberations, he tweeted, “It’s over.”
Although the Benton County Circuit Court rejected the defense’s assertion that the juror’s use of Twitter during trial constituted juror misconduct, and it denied the defendant’s motion for a new trial, on appeal, the Supreme Court of Arkansas determined that the tweets unduly prejudiced the defendant-appellant. It decided that the juror’s postings about the trial were prejudicial, not only because vast numbers of people could view the tweets, but especially because one of the juror’s followers was a reporter. His tweet relaying that deliberations were completed potentially gave the media advance notice of the jury’s decision before the court had even received official notice. The court reversed Dimas-Martinez’s capital murder conviction and remanded the matter for new trial.
B. State v. Christensen
In a recent Iowa case, State v. Christensen, while jurors were not improperly posting about the case on their social media accounts, some of them viewed public Facebook posts about the case. In particular, a few jurors learned through Facebook posts about the possibility of the community rioting and taking violent action if the jury did not return a verdict of first-degree murder against Christensen. The jurors who learned of the posts shared their content with several other jurors in the jury room.
Defendant-appellant Lee Samuel Christensen asserted that his rights to a fair trial and due process of law were violated because jurors were exposed to and influenced by extraneous social media information during the deliberative process. The trial court found that the jurors’ knowledge of the Facebook posts did not deny the defendant, who received a conviction of second-degree murder for shooting a young man who was seeing a woman he once dated, a fair trial. The court surmised that jurors had not discussed the possibility of riots until after deliberations were complete and their verdict had been reached. Furthermore, the fact that the jury found the defendant guilty of second-degree murder, and not first-degree murder, indicated to this court that the Facebook posts did not sway jurors. The appellate court disagreed with the trial court’s conclusion. It determined that at least four of the jurors considered the riot information during their deliberations and before they came to a verdict. Furthermore, it said, whether jurors discussed the threatening internet posts before or after they arrived at their verdict was irrelevant because “...until a verdict is announced in open court, it is not final.” The appeals court also asserted that the jury verdict of second-degree murder hinted to the likelihood that jurors had been improperly influenced by the Facebook posts. It noted that the defendant had sought a lesser charge of voluntary manslaughter.
The appeals court concluded, “The extraneous information introduced into the jury room was calculated to and with reasonable probability did influence the jury verdict.” It reversed the trial court’s decision and remanded for a new trial.
The lone dissenting judge took issue with the majority opinion that inadvertent contact with news about the case constituted juror misconduct. He asserted that it was inconceivable that the jurors, no matter how conscientiously they may have tried to avoid it, would not have come into contact with some news of the trial in progress. The fact that the jurors caught wind of social media reports and comments about the trial, did not mean they were influenced by them. He said, “Due process does not require a new trial every time a juror has been placed in a potentially compromising situation.”
C. Limitations and Guidance on Use of Social Media During Voir Dire and Trial
Before conducting internet investigations of jurors, lawyers should be aware of the rules regarding social media research in the jurisdictions where they try cases. Judges have wide discretion concerning the procedures in their courtrooms, thus, litigators should learn, as well, whether the judge in their case limits or restricts such searches. They should also pay heed to guidance opinions offered by the American Bar Association, as well as those offered by state and local bar associations. Many jurisdictions have adopted guidelines similar to those promulgated by the ABA.
Formal Opinion 466 (“ABA 466”), issued by the American Bar Association, says, that, unless lawyers are limited by law or court order, it is permissible for them to review a juror or potential juror’s internet presence before and during trial. It strongly encourages lawyers to learn the court’s expectations regarding such research. It also suggests that judges advise jurors that lawyers in the case may investigate them.
Under ABA 466, attorney requests to “friend” jurors on Facebook (or to have another person friend them) are improper. It states that such actions violate ABA Model Rule 3.5(b), which prohibits ex parte communications between lawyers and jurors. Thus, under ABA 466, lawyers may only search jurors’ social media sites that are open to the public.
The Association of the Bar of the City of New York Committee on Professional Ethics (“ABCNY”), in Formal Opinion 2012-2, takes a stricter stance concerning which research actions constitute improper communications. Not only does sending a friend request to a juror constitute an ex parte communication, but should a juror receive a network-generated notification that an attorney had visited his website that, too, would constitute an improper communication. ABCNY 2012-2 cautioned that even an accidental, automated notice to the juror could be considered a violation of New York Rules of Professional Conduct Rule 3.5.
D. How to Prevent Juror Misuse of Social Media
At The Focal Point, we believe jury instructions are the most effective tool to reduce the risk of juror misconduct on social media. In the Northern District of Illinois survey that was mentioned earlier in this article, many of the jurors who were tempted to communicate about the case through social media reported that it was the judge’s instruction that influenced them not to do so. The researchers of the survey, who published their findings in Duke Law & Technology Review, advised courts to instruct juries about social media usage early in the trial and often. They recommended that judges specifically describe to jurors the types of social media posts they should avoid. They noted that a juror who simply posts “I am on jury duty” can sometimes be revealing too much information.
The results of the Illinois study indicated jurors were more invested in following the rules when they knew the reasons behind them. Indeed, when one considers that jurors are adults who are sacrificing their jobs, families, and time to fulfill their duty to the justice system, it seems only proper that they should hear an explanation as to why the court is restricting their activities. Thus, judges should explain to them the gravity of the matter before them, the variety of ways electronic-usage restrictions ensure fundamental fairness of the trial, and the important place they hold in assuring justice is achieved.
At The Focal Point, we have compiled a list of effective methods to prevent juror misuse of social media. Attorneys should ask judges to:
- Present jury instructions regarding social media use, including specific examples of the types
of use that would be improper;
- Repeat the jury instructions often, preferably at the beginning of each day of trial;
- Explain to jurors the reasons behind internet restrictions;
- Instruct jurors to report when they detect other jurors inappropriately using social media;
- Alert jurors of the personal consequences they face, including fines or being held in contempt of
court, if they engage in improper communications;
- Have jurors sign a pledge to refrain from improper communications;
- Place a poster in the jury room that reminds jurors of social media instructions;
- If necessary, confiscate phones at the beginning of each day of trial.
We also recommend using a juror questionnaire asking briefly if the venire-member uses social media, and following that question with a note that the judge will instruct jurors not to use social media.
E. Making Jury Duty Palatable
Just as jurors should hear an explanation as to why their social media use is being restricted, so too they should hear an explanation as to why attorneys will be allowed to review their social media accounts. Jurors need to learn this measure is being taken to provide the parties pursuing justice assurance they are standing before peers who can judge the matter without bias and concentrate solely on the issues presented in the courtroom. Again, jurors need to be reminded of the important position they hold in ensuring the administration of justice and that scrutiny by the court may be an imposition they are charged with bearing in order to fulfill this critical role.
Without such explanation, the knee-jerk response from many jurors upon learning that they are the subject of a social media search is to feel disrespected and violated. In fact, the juror in the Dimas-Martinez case, upon learning his tweet had been uncovered and was being read aloud to him by the judge, declared, “Well, I’m a little shocked. That’s a little creepy.”
True, knowledge of the search did not inspire this juror to stop tweeting, but he was an anomaly. In most cases, we at The Focal Point find that by revealing the fact that attorneys will be assessing jurors’ social media accounts and by providing frequent instructions to jurors to refrain from improper social media searches, as well as by explaining the reasons behind both of these situations, jurors are inclined to aptly fulfill and embrace their role in the trial. By continuing to ethically assess jurors’ social media accounts throughout the trial, attorneys can be assured their clients will receive a fair trial.
Amy J. St. Eve, Charles P. Burnes & Michael A. Zuckerman, More From the #Jury Box: The Latest on Juries and Social Media, 12 Duke Law & Technology Review 64, 66 (2014).
Dimas-Martinez v. State, 385 S.W.3d 238 (Ark. 2011).
State v. Christensen, No. 17-0085, 2018 WL 1865353 (Iowa Ct. App Apr. 18, 2018).
ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 466 (2014).
Model R. Prof. Conduct 3.5(b).
Ass’n of the Bar of the City of N.Y. Comm. on Prof’l Ethics, Formal Op. 2012-2.
See St. Eve, More From the #Jury Box, supraat 66.
Appeared in The Focal Point Press
February 12, 2019