Jury Selection: Television's “Bull” and the Trial Lawyer's Ethical Limits to Researching a Prospective Juror's Social Media Presence
I have been watching the new hit television drama “Bull” about the adventures of a jury trial consultant. In “Bull,” the lead character is a psychologist who uses an ultra-high-tech internet research system to investigate each potential juror's digital footprint, including their electronic social media presence, then analyze and advise trial lawyers which jurors to select in order to win the trial. Of course, for the sake of drama, “Bull” does little to outline the ethical boundaries for lawyers researching juror backgrounds, including prohibited, unethical ex-parte communication with jurors through social media. Indeed, you must consider that one of the series' supporting characters wears a stocking cap and is nicknamed “Hacker.” If nothing else, “Bull” brings to the forefront the question of the ethical limits for trial lawyers and their agents investigating the backgrounds of prospective jurors through use of social media.
Juror Background Checks
Trial lawyers investigating the backgrounds of prospective jurors is nothing new. It was time consuming and expensive. But now, the Internet has made the background investigation of every prospective juror quick, inexpensive and, often, quite revealing.
Improper communication with jurors is reversible error. Jeneary v. Chicago Interurban Traction Co., 225 Ill.App. 122 (2d D. 1922) However, ethically, a trial lawyer cannot be faulted for discovering a juror's publically disclosed digital information as part of jury selection. In fact, a trial lawyer may be remiss if he does not use Google as a form of background voir dire of prospective jurors. For example, using Internet investigation, the trial lawyer can often check the following public background information:
- Work History. g. LinkedIn profiles will list a juror's past and employers, job titles, skills and training, and education level.
- Litigation history. org provides data on a juror's prior lawsuits, divorces, marriages, claims and criminal records, including arrests and convictions, which are filed in the courthouse and the juror may be embarrassed to disclose on voir dire.
- Residence/property values. g. Zillow provides comparative neighborhood sales prices perhaps indicating the juror's level of affluence.
- Political Affiliations. g. FEC.gov or DonorReseach.com may reveal a juror's political contributions to specific candidates and support for certain social, religious or financial attitudes.
- Juror Opinions. g. a juror's Blog posts may reveal attitudes and beliefs.
In the above list, the question of a trial lawyer's prohibited ex-parte communication with a prospective juror is not likely to arise, even inadvertently. In the above examples, the juror probably will not even know that the trial lawyer viewed or accessed these public data bases.
ABA Formal Opinion 466 and Researching a Juror's Social Media Presence
The question becomes how far ethically the trial lawyer can go researching a prospective juror's personal social media accounts. The American Bar Association has issued Formal Opinion No. 466 which defines the trial lawyer's ethical limits to researching a prospective juror's presence on the Internet. The Illinois State Bar Association has not formally addressed the issue. I believe, the basic rule for any trial lawyer to follow is do not send to any juror any form of electronic communication which could be received by the juror. Don't you or one of your agents try to “Friend” a potential juror to access his account. That's ex-parte communication.
A Juror who Becomes Aware of a Lawyer Reviewing his Internet Data is not Communication
In the LinkedIn example, the trial lawyer reviewing a juror's work history would not run afoul of any ethical violation for ex-parte communication because he is viewing a publically accessible profile. However, the trial lawyer should always keep in mind that the juror probably will learn by notification through their LinkedIn account that the trial lawyer has viewed his or her profile. Setting aside the wisdom of a trial lawyer losing or gaining the trust of a potential juror after the juror discovers that he is snooping around the juror's digital presence, ABA Op. 466 makes clear that the fact “that a …potential juror may become aware that a lawyer is reviewing his internet presence…does not constitute a communication from the lawyer.” Passive lawyer review is O.K.
I recommend, for many juror “trust” reasons, that the trial lawyer inform all prospective jurors during voir dire that his trial team researches the digital footprints of all jurors as a matter of routine.
A Lawyer's “Access Request” to a Juror's Social Media Account is Prohibited Communication
However, a trial lawyer or his agents should not send to either a prospective or sworn juror any requests for access to their electronic social media accounts. Again, no “Friending” requests! As a basic rule, Op. 466 states that lawyer may not send a prospective juror an “access request” to his social media accounts. If a prospective juror has privacy settings on Facebook, Instagram, Twitter, etc. the trial lawyer cannot attempt to gain access for the sake of a background check on the juror.
In conclusion, while watching “Bull' on television, the trial lawyer must always remember the ethical limits of juror research and ex-parte communication and distinguish them from the dramatic Hacker character and her exploits in a juror's social media accounts.