Should Judges Play a Role in Voir Dire Social Media Investigation of Potential Jurors?

A recent survey conducted by the Federal Judicial Center queried active district court judges to assess the frequency that attorneys use social media to conduct research on potential jurors during voir dire, in order to identify strategies to curb the behavior. The results of the survey indicated that it is difficult for judges to detect whether attorneys are accessing potential jurors’ social media profile during voir dire. It also revealed that most judges do not address this issue with attorneys. Among the judges who participated in the survey, approximately 69% responded that they do not address the issue of social media with attorneys before the voir dire process.

ABA Formal Ethics Opinion 466 , recently addressed three levels of lawyer review of juror Internet presence: 1) passive review where the juror is unaware that a website has been reviewed; 2) active review where the lawyer requests access to the juror’s site; and 3) passive review where the juror becomes aware through a website feature the identity of the viewer.

The Committee opined that passive review in the first instance did not violate Model Rule 3.5(b),which prohibits direct communication with a prospective juror. However, it found that, “a lawyer may not personally, or through another, send an access request to a juror.” Deeming this the type of ex parte communication prohibited by Rule 3.5(b).

But most noteworthy is the Committee’s treatment of the third level of lawyer review, the passive review where the juror becomes aware, through a website feature, the identity of the viewer. Dissenting with New York Committee on Professional Ethic’s Formal Opinion 2012-2, and New York County Lawyers; Association Committee on Professional Ethic’s Formal Opinion 743, the ABA Committee concluded that this level of review did not constitute communication with the juror. The Committee reasoned that in this instance the electronic social media is communicating with the juror based on a technical feature, not the lawyer, making the capability beyond the control of the reviewer.

The findings of the survey along with ABA’s assertion that a social media service’s technological contact with a juror is not impermissible, beg the question of whether trial judges should be integrated into the social media aspect of voir dire because of the view that trial judges’ awareness of the practice and explanation of it to the jurors is likely the best way to, “dispel any juror misperception that a lawyer is acting improperly merely by viewing what the juror has revealed to all others on the same network.”

Click here to read the full results of the survey.

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