(Part II of four parts) We return to the hypothetical case of Smith v. Jones. Defense counsel is about to present their argument to allow social media searches of the venire, as well as jury members both during and after trial.
Counsel for defense: Numerous cases throughout the country support our request, allowing lawyers — and those working with them — to use social media before, during and after trial.
- In Bresler v. Wilmington Trust (2013), the Maryland District Court granted permission to counsel to view publicly available information with respect to jurors.
- In Carino v. Muenzen (2010), the New Jersey Superior Court, Appellate Division, ruled the trial judge in a medical malpractice case abused discretion by prohibiting counsel for plaintiff from conducting internet searches in the courtroom during voir dire.
- In Sluss v. Commonwealth (2012), the Supreme Court of Kentucky held that lawyers have the right to conduct internet and social media searches about prospective and actual jurors during voir dire and trial.
- In Johnson v. McCullough (2010), the Missouri Court issued a rule requiring trial lawyers to conduct certain specific internet searches about jurors after jury selection, but before the jury is empaneled.
Cases also exist requiring lawyers to conduct certain internet searches, and to report any jury misconduct discovered through social media during and after trial. United States v. Parse, 789 F.3d 83 (2d Cir. 2015).
Further, some courts have held that lawyers may waive any right to make post-verdict arguments about juror misconduct, if the lawyer failed to conduct internet searches during voir dire or trial that could have disclosed the jurors’ misstatements or misconduct. In Burden v. CSX Transportation Inc. (2011), the Illinois Court ruled that defense counsel waived any objection to jurors’ false statements during voir dire because counsel failed to conduct internet searches that would have disclosed the false statements. But in fairness, your Honor, the same court was skeptical about counsel conducting internet searches about jurors after an adverse jury verdict.
To appreciate the inherent value of social media searches, consider Dimas-Martinez v. State (2011). The Arkansas Court overturned a first-degree murder conviction and ordered a new trial based on a juror’s repeated violations of instructions not to post statements on social media about the trial.
Judge: What about the ethics of these internet searches?
Counsel for defense: Let me begin with Maryland Rule 19-303.5, Impartiality and Decorum of the Tribunal (3.5).
“A lawyer shall not….:
(b)(3) during the trial of a case with which the attorney is connected, communicate outside the course of official proceedings with any member of the jury.”
The issue posed by the rule in the context of our request is whether the search by counsel for information in a juror’s social media account is perceived as “communication” with the prospective or actual juror, or whether it is simply a search for public information.
There is a well-known ABA formal opinion on point: 466 ABA Formal Op. April 24, 2014 – Lawyer Reviewing Jurors’ Internet Presence.
The opinion concludes that counsel can review publicly available information on the internet about prospective and actual jurors before and during trial without violating the rules of professional conduct. There is a cautionary reminder: Lawyers and their agents are not permitted to communicate directly or indirectly with a prospective juror; for example, they are prohibited from making an access request to see non-public portions of the juror’s electronic social media.
We urge the court to conclude that jury searches of the public information on a juror’s social media page is not a communication at all. Thus, not a violation of Rule 3.5 of the Rules of Professional Conduct.
Court: But what if your search is reflected on a prospective juror’s web page, thus signifying that you are in communication with the juror?
Counsel for defense: Good question. The ABA opinion states that even so, the search is not converted to a communication with the juror. Thus, there would be no violation of Rule 3.5 of the Rules of Professional Conduct.
Court: Are there other ethics opinions?
Counsel for defense: Absolutely.
In 2012, the Association of the Bar of the City of New York Committee on Professional Ethics concluded that a LinkedIn search of a juror’s profile would constitute “communication” if the lawyer knew it would result in an automatic notice to the juror.
Pennsylvania Bar Association’s formal opinion 2014-300 endorses the analysis of the ABA opinion.
The formal opinion No. 2013-189 of the Oregon Bar Association admonishes lawyers to refrain from “communicating with jurors, before, during, and after” a proceeding, but acknowledges that a lawyer may review a juror’s publicly available information on social media websites.
Interestingly, the ABA opinion recommends that trial judges instruct members of the venire panel and the jury itself that lawyers are permitted to conduct internet and social media searches concerning the panel and the jury.
Court: Well, we can discuss instructions later, if I agree with your request.
Join us next month when counsel for the state presents their argument.
Paul Mark Sandler, trial lawyer and author, can be reached at email@example.com.