(Part III of four parts) We return to the hypothetical case of Smith v. Jones. Counsel for defense has concluded their argument to allow social media searches of the venire, as well as jury members both during and after trial. The judge is about to grant permission to counsel for the state to proceed.
Court: Who will speak for the plaintiff?
Counsel for the state: I shall your Honor.
Court: Very well, you may proceed.
Counsel for the state: May it please the court:
The use of social media searches of jurors during voir dire, and during and after trial, is unnecessary, as well as completely unfair to jurors to the extent that it could catapult some jurors into a state of emotional distress, as they contemplate their vulnerability when lawyers are watching them over the internet. These proposed searches could jeopardize the fair trial the parties deserve.
Moreover, delays are inevitable by injecting social media into the courtroom, which the court mentioned at the commencement of the arguments will be many. Only last month this court rejected a proposal by defense counsel to permit a written jury questionnaire. You stated then that the voir dire questions submitted by all counsel were thorough. You even added some of your own questions. Now defense counsel proposes searches over the internet. This places undue burden on everyone.
Now the state regrets objecting to the proposal of the defendants to submit a written questionnaire to the jurors. We seem to be going from the frying pan into the fire. The trial has not even begun.
One important case that we respectfully request that you consider is Oracle America, Inc. v. Google, Inc. (2016). In that case, Judge Alsup in California explained that social media searches would increase the risk that some jurors would disregard the court’s instructions to refrain from conducting internet and social media searches of their own.
Do we want that in this case? Of course not.
Also, the court in Oracle anticipated that the lawyers would use the information through social media searches to shape or change their arguments in a way that would appeal to particular jurors in an unfair way.
The court also expressed strong belief that a trial judge must protect the privacy interest of jurors. He wrote, and I quote:
Trial judges have such respect for juries — reverential respect would not be too strong to say — that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information. (172 F. Supp. 3d at 1101)
Regarding the issue of ethics, opinions by bar associations are not law. Even if a search focuses on public information, the individual who is the object of the search oftentimes knows clearly that someone is reviewing their site. Those ethical rules create a sham when they provide that it is fine to search as long as the one searching does not know whether the object of the search is notified that a search occurred. Everyone knows that it is likely that the object of the search can learn someone is “communicating” with them. Hence, Rule 3.5 is violated.
Still other problems are posed by the request of the defense. For example, how can a court regulate the conduct of third parties working for counsel outside of the courtroom? Non-lawyer consultants can wreak havoc with the rules. In a criminal case such as this, the privacy of the jurors is paramount.
Using social media to intrude on the venire before even being seated is to expose non-jurors to an invasion of their privacy, as their personal information could be penetrated by skillful IT employees of counsel. The law is clear: A lawyer, consultant or other person working for a lawyer handling a trial is not permitted to seek or obtain “friend” status on Facebook with a prospective or actual juror.
The value of the additional information by social media searches is outweighed by the negative reaction of a juror to the knowledge that they are being investigated. The state would like an instruction to the jury, if you grant the motion of the defense, that the state will not be using social media to investigate them.
This court should deny the request of the defense. The research is invasive, and it infringes on the privacy of the jurors. The research by the lawyers could stimulate jurors themselves to research the lawyers and communicate about the case with family or friends; give unfair advantage to the party that discovers information not learned by all counsel; and cause some jurors to be fearful that the parties themselves are behind the research. Thus, fearing retaliatory action could be taken by a defendant. The necessary efforts for this social media research require even more time and pose more risks than the questionnaire previously proposed by the defense, which this court has denied.
Court: Thank you, counsel.
Join us next month when the judge renders the decision.
Paul Mark Sandler, trial lawyer and author, can be reached at firstname.lastname@example.org.