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Ethics & Professional Responsibility FLASHPOINTS June 2019

June 14, 2019Print This Post Print This Post

Mary Robinson, Sari W. Montgomery & James A. Doppke, Jr.
Robinson, Stewart, Montgomery & Doppke, LLC, Chicago
312-676-9875 | E-mail Mary Robinson | E-mail Sari W. Montgomery | E-mail James A. Doppke, Jr.

Below is an excerpt from §7.9 of INSIDE AND OUTSIDE THE JURY BOX: EFFECTIVE TRIAL STRATEGIES — 2019 EDITION.

Using Social Media in Selecting a Jury

Whether the attorney has engaged in a mock jury exercise prior to trial, there remains a number of investigative options available to assist in jury selection that can level the playing field between those with disparate resources. If the court discloses any information about the jury venire prior to the trial date, counsel can make use of social media to learn a great deal about the jury pool. Industrious counsel with a laptop and an Internet connection can run searches during the voir dire process even if no information is released prior to the voir dire. However, lawyers must be cognizant of the ethical lines between permissible investigation of prospective jurors’ online footprint and impermissible ex parte communication with prospective jurors.

Looking up a name on Google, Facebook, LinkedIn, Twitter, or similar social media sites can reveal much about a prospective juror. Photos posted on social media can provide valuable insight into the type of activities, hobbies, travel, and other personal information that may lead counsel to include or exclude a potential juror. Blogs written by the prospective juror, or his or her family members, may reveal how the person feels on topics that may also influence his or her deliberative decision-making process. Political affiliations, including donations to parties or candidates, are discernible through various reporting websites that could inform counsel on how particular jurors may view their case. Beyond these standard searches, one can find revealing information through public searches yielding a juror’s digital footprint. In fact, failing to perform an online search for information about potential jurors may violate a lawyer’s duty of competence. See, e.g., Comment [8], Illinois and ABA Model Rule of Professional Conduct 1.1 (requiring lawyers to keep abreast of changes in, and risks and benefits of, technology); Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010) (lawyer must use “reasonable efforts” to find potential juror’s litigation history in Case.net, Missouri’s automated case management system; this standard was codified by Missouri Supreme Court Rule 69.025 in 2011); N.H. Bar Ass’n, Op. 2012-13/05 (lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation”); Ass’n of the Bar of the City of N.Y. Comm. on Prof’l Ethics, Formal Op. 2012-2 (“Indeed, the standards of competence and diligence may require doing everything reasonably possible to learn about jurors who will sit in judgment on a case.”).

Information located on social media can also be useful in ensuring the ethical integrity of the jury by identifying the juror who makes false statements on his or her juror questionnaire, or by identifying any jurors who may be posting about the case on social media inappropriately. When lawyers find that a juror has engaged in misrepresentation or improper conduct, they have an obligation to report such misconduct to the court. Rule 3.3(b) of both the Illinois Rules of Professional Conduct and the ABA Model Rules of Professional Conduct requires that a lawyer who represents a client in an adjudicative proceeding and who knows that a person participating in that proceeding intends to engage in or has engaged in criminal or fraudulent conduct related to the proceeding must take reasonable remedial measures. Comment 12 to Rule 3.3 is also instructive:

Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so.

For more information about ethics and professional responsibility, see the upcoming INSIDE AND OUTSIDE THE JURY BOX: EFFECTIVE TRIAL STRATEGIES, available for preorder here.

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