This article, co-authored by Kristin Thomas, owner of KT Designs, and Noel Bagwell, President and Chief Legal Officer of Executive Legal Professionals, PLLC, was published in Volume 16 | No. 7;  October/November 2016 edition of the Nashville Bar Association’s Nashville Bar Journal. You can view the full version of the Nashville Bar Journal here.

Best Practices for Conducting Voir Dire in the Information Age

When picking a jury, attorneys must consider many details about the jurors. Everything is scrutinized, from employment, prior experiences, and the responses potential jurors give to questions to their appearance and body language. Our internet-saturated world, and especially the wide-spread use of social media, provides an additional layer of complexity to jury selection not present a decade ago.

While 76% of American adults use the internet and 65% of all US adults use at least one social media platform¹, the legal industry is taking a delicate approach to its use as a research tool during voir dire. The Supreme Court of Tennessee, like many states, has weighed in on issues relating to jurors’ use of social media, but, as one might suspect, the opinions issuing from so many states’ highest courts on this issue vastly differ from one another.

To help readers improve their understanding of how other jurisdictions are handling similar questions, in this article the authors will examine a comparison between the ABA formal opinion 466, cases in Tennessee and Kentucky, and finally the New York City Bar Ethics Opinion. Also, the authors will be providing a few helpful suggestions regarding what they believe are best practices relating to the use of social media as such use relates to voir dire.

ABA Standing Committee on Ethics and Professional Responsibility Opinion 466: Formal Lawyer Reviewing Jurors’ Internet Presence

The ABA’s ethics opinion 466 is one of the more widely cited bar ethics opinions on this topic. It states, in part,

“Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.

A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).

The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).

In the course of reviewing a juror’s or potential juror’s Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.”²

Tennessee

During one of the better-known cases in our state, State of Tennessee v. William Darelle Smith, the accused appealed his murder conviction on the grounds that a juror communicated with the testifying medical examiner through Facebook

As a result, Mr. Smith did not receive a fair and impartial trial. Tennessee Supreme Court affirmed the decision of the trial court, stating that,

“Despite all the evidence that the two were casual acquaintances at best, the substance of the message itself raises some doubts as to the impartiality of the juror. It was highly improper for the juror to disregard the instructions which the trial court had given regarding contact with witnesses. In addition, the tone of the message, which is in substance a compliment on Dr. Lewis’s testimony, suggests partiality. Finally, we note that the discussion of the impropriety of the message appears itself improper. While Dr. Lewis testified that she intended to convey, in her response to Mr. Mitchell, that she found his communication inappropriate and that it could be the basis for a mistrial, her response as written implies that she believes that their acquaintanceship itself could be the basis of a mistrial, and it suggests doubt regarding whether the relationship will remain undisclosed. Mr. Mitchell’s reply demonstrates that he is aware of the risk of mistrial and has concealed the relationship thus far. Ultimately, Mr. Mitchell did not reveal either the relationship or the communication, although Dr. Lewis did so at once. The Tennessee Supreme Court, in remanding the case, observed the importance of avoiding contact on social media that could ‘spawn public doubt about the capacity of the modern jury system to achieve justice.’

Nevertheless, we conclude that the State has sufficiently rebutted the presumption of prejudice through the testimony of Mr. Mitchell and Dr. Lewis. As the trial court found, the relationship of the parties was very distant. Facebook ‘friendships’ frequently exist between those who are indifferent to one another. While the tone of the exchange raises the specter of prejudice, Mr. Mitchell’s unwarranted exuberance on discovering an old acquaintance does not demonstrate actual partiality, and all testimony presented at the hearing served to show that the juror did not harbor bias. Furthermore, Mr. Mitchell’s comment to Dr. Lewis was not based on his acquaintance with her but was rather his evaluation of the testimony presented at trial. A juror is, of course, free to evaluate the testimony of a witness, although communicating such an appraisal to the witness herself during trial is improper. As noted above, the proof in the case was particularly strong, and the testimony of the witness was mainly concerning uncontested issues… We conclude that the State adequately rebutted the presumption of prejudice and that the defendant has not established that juror bias deprived him of the right to a fair trial.”³

 Kentucky

The Commonwealth of Kentucky is our closest neighbor to weigh in on the issue of social media and jurors. In the case Kentucky v. Sluss, one juror had denied having a Facebook page and another failed to disclose their friend status with a family member of the deceased.

An appeal on behalf of Mr. Sluss was filed, in part, based on juror’s failure to disclose.

The Supreme Court of Kentucky ruled that,

“[A] juror who is a ‘Facebook friend’ with a family member of a victim, standing alone, is arguably not enough evidence to presume juror bias sufficient to require a new trial. As with every other instance where a juror knows or is acquainted with someone closely tied to a case, it is the extent of the interaction and the scope of the relationship that is the relevant inquiry.

In regard to jurors who admitted to being on Facebook, the trial court attempted to make this inquiry by asking whether they had read anything about the case on the website. That the court actually made this inquiry strongly suggests that a juror’s status on Facebook was not sufficient standing alone to decide whether the juror was disqualified. This is correct, because it is the closeness of the relationship and the information that a juror knows that frames whether that juror could reasonably be viewed as biased. The fact that jurors were ‘friends’ of April Brewer, absent other evidence of a close relationship or knowledge, is not sufficient grounds for a new trial.

The Commonwealth correctly argues that the Appellant must do more than simply speculate that the relationship might have somehow affected the jury verdict. Thus, the mere fact that Amy Sparkman–Haney and Virginia Matthews were April Brewer’s Facebook friends, which is the extent of the proof the trial court heard about their acquaintance, is not grounds for a new trial.”⁴

New York City Bar Ethics Opinion 2012-2: Jury Research and Social Media

One of the more controversial Ethics Opinions issued is the NYC Bar Ethics Committee, Opinion 2012-2, which warns lawyers that, while potential jurors’ digital footprints should be researched and monitored, if a juror becomes aware that one of the lawyers is viewing their social media accounts, it could be considered prohibited communication and may result in reprimand for violating the NYC Bar rules of professional conduct. In part, the opinion states,

“We conclude that if a juror were to (i) receive a ‘friend’ request (or similar invitation to share information on a social network site) as a result of an attorney’s research, or (ii) otherwise to learn of the attorney’s viewing or attempted viewing of the juror’s pages, posts, or comments, that would constitute a prohibited communication if the attorney was aware that her actions would cause the juror to receive such message or notification.

We further conclude that the same attempts to research the juror might constitute a prohibited communication even if inadvertent or unintended. In addition, the attorney must not use deception—such as pretending to be someone else—to gain access to information about a juror that would otherwise be unavailable. Third parties working for the benefit of or on behalf of an attorney must comport with these same restrictions (as it is always unethical pursuant to Rule 8.4 for an attorney to attempt to avoid the Rule by having a non-lawyer do what she cannot). Finally, if a lawyer learns of juror misconduct through a juror’s social media activities, the lawyer must promptly reveal the improper conduct to the court.”⁵

Best Practices: Social Media and Jurors

The regulation of communication in the legal industry still lags behind the technological advancements which have been, and continue to be, both benefit and bane to lawyers since the Internet became ubiquitous. Even though lawyers are, now more than ever, required to exercise keen discernment regarding what is and what is not ethical communication—both in form and in substance—one of the most frustrating facets of the task of exercising such discernment is trying to divine the goals of the various regulators.

The incentives of regulators drive the rules they create, but these incentives are as varied as are the backgrounds, political opinions, and ethical postures of the regulators themselves. So, what’s a good-intentioned lawyer to do? Many prefer to let their conscience be their guide, and presume they will have an opportunity to ask forgiveness if they should stray across some invisible ethical boundary. Others prefer to play it safe, and forego even the appearance of what might possibly begin to be construed as a potential infraction.

In an effort to assist our fellow attorneys in their struggle to maneuver through the obscure ethical chaparral of the digital frontier still being slowly colonized by regulators, we submit for your consideration the following suggested best practices for lawyers, when using (or not using) social media in connection with voir dire and other juror-related activities.

1. Know and understand the local rules. When it comes to jurors and social media, the most important thing to remember is that the local rules governing lawyers’ use of social media, in connection with voir dire and for other purposes which might impact or be perceived by jurors, substantially vary from jurisdiction to jurisdiction. When entering into a jury trial, a lawyer should briefly review the local rules respecting use of social media, especially in connection with voir dire. What a lawyer can and cannot do is ultimately governed by the local rules of the jurisdiction in which the case is being heard; ignore them at your peril.
2. Don’t try to circumvent the rules using a proxy. Just follow the rules. Trying to be clever and get around the rules by using a proxy will not work, because, especially in New York, “it is always unethical … for an attorney to attempt to avoid the Rule by having a non-lawyer do what she cannot.” Honesty is the only policy, and honesty involves adhering to both the letter and the spirit of the law.
3. Restrict your activity to passive observation. Generally, according to the ABA, unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial. Passive review, not direct communication with a juror, is what is permitted, here. What lawyers want to avoid is any interactivity with the juror, aside from just passively browsing their Internet presence data.
4. Don’t send access requests to (potential) jurors. Generally, according to the ABA, a lawyer may not communicate directly or through another with a juror or potential juror. This includes sending access requests to a juror’s electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by ABA Model Rule 3.5(b). So, lawyers should avoid adding jurors or potential jurors as LinkedIn connections, Facebook “friends”, etc. during the course of voir dire or any other part of an ongoing trial.
5. Be careful about triggering notifications resulting from settings! Except in New York, and possibly a few other jurisdictions, generally, according to the ABA, the fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of ABA Model Rule 3.5(b). This is one of the problems with model rules; they’re not universal rules. When the Model Rules conflict with local rules, they can add to confusion about what is or is not permitted in a given jurisdiction. Always rely on the local rules, first. While, in Tennessee, it might be alright to permit a juror or a potential juror to become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such, a lawyer in New York might be reprimanded under the same or similar circumstances.
6. Report crimes. Generally, according to the ABA, in the course of reviewing a juror’s or potential juror’s Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal. Lawyers have a duty to report suspected or apparent criminal activity to law enforcement and to the court, when the person responsible for the activity is a (potential) juror.

The foregoing are all rules, but they are derived from one simple, if inelegantly stated, principle:

Lawyers should avoid contact on social media that could ‘spawn public doubt about the capacity of the modern jury system to achieve justice’.

At least, that’s the Tennessee Supreme Court’s guiding principle. To this author, that principle, as stated, seems more concerned with managing appearances than with promoting actual integrity in the legal profession, but as long as following the principle has the effect of promoting actual integrity in the legal profession, that distinction may be practically unimportant.

When it comes to social media and jurors, be forthright, pay close attention to the local rules, and try to avoid doing anything that a reasonable third party observer might use to accuse you of improperly influencing a potential juror or the outcome of a trial.

References

1.     Andrew Perrin, Social Media Usage: 2005-2015, Pew Research Center (October 8, 2015), http://www.pewinternet.org/2015/10/08/social-networking-usage-2005-2015/

2.     American Bar Association Standing Committee on Ethics and Professional Responsibility, Lawyer Reviewing Jurors’ Internet Presence, Formal Opinion 466 ABA (2014), http://www.americanbar.org/content/dam/aba/administrative/professional_
responsibility/formal_opinion_466_final_04_23_14.authcheckdam.pdf

3.     State of Tennessee v. William Darelle Smith, No. M2014-00059-CCA-R3-CD (TN January 7, 2015), http://www.tncourts.gov/sites/default/files/smithopn_0.pdf

4.     Ross Brandon Sluss, Appellant, v. COMMONWEALTH of Kentucky, Appellee., No. 2011–SC–000318–MR. Decided: September 20, 2012 http://caselaw.findlaw.com/ky-supreme-court/1612369.html

5.     NYC Bar Ethics Committee, Jury Research and Social Media, Formal Opinion 2012-2 NYCB (2012), http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2012-2-jury-research-and-social-media