Excerpted and adapted from Social Media as Evidence: Cases, Practice Pointers, and Techniques, now available from LPM Publishing.
The Use of Social Media to Conduct Research on Jurors
In addition to researching individual jurors, parties should also consider social media research to discover trends of thought, attitudes, opinions, and the like among the jury pool in the area, particularly in a high profile case. Indeed, information obtained from social media sites may be different from that found in traditional media outlets and, most importantly, closer to the actual opinion of the potential jurors than the views expressed in traditional media. In-depth social media research includes not only user-generated content on traditional social media sites (including blogs), but also user comments on other sites such as traditional media sites. Notably, comprehensive social media research, typically conducted by experienced jury research consultants, can be useful not only in the planning phase of the case, but also for change of venue motions when a party may be trying to establish potential juror bias or the like.
Attorneys have another tool available to them in cases where the jurors are identified by their full name and not just a juror number. Although the case law is not well developed in this area, recent decisions suggest attorneys may research prospective jurors using social media and can do it in the courtroom during jury selection.
In Carino v. Muenzen, the New Jersey court issued a press release before trial in which the court stated that wireless Internet access was now available to “maximize productivity for attorneys” and other court users. During the voir dire, the plaintiff’s attorney in this medical malpractice case searched the Internet for information about potential jurors. Defense counsel objected, and the trial judge directed the plaintiff’s attorney to close his laptop. The trial judge reasoned that Plaintiff’s counsel had an unfair advantage during jury selection because Plaintiff’s counsel had not told defense counsel before the trial that he intended to use his laptop to research potential jurors.
Plaintiff’s counsel appealed, and while the appellate court did not reverse the trial court, it reasoned that Plaintiff’s counsel did not have an unfair advantage during jury selection because the court had announced the availability of wireless Internet access in the courthouse before trial, and there was no state court rule requiring a lawyer to notify the court or an adversary about his use of the Internet at trial. (Ultimately, the court of appeal chose not to reverse the trial court because appellant had failed to demonstrate any prejudice resulting from the trial court’s ruling.)
Many courts provide WiFi and attorneys do well to consider accessing the Internet and social media sites to learn about prospective jurors during voir dire. Of course, it is best to have two to three attorneys conducting the voir dire analysis simultaneously otherwise it may be difficult to access the data, record it, and then use it in the form of specific questions.
Monitoring the Jury Through Social Media During Trial
Using social media to get more information on your jury should not end with picking a jury, but should continue throughout the trial. In one widely reported case, a criminal
defense attorney’s son found a troubling Facebook post while doing further research on the jurors in a resisting arrest case. In that case, Juror Hadley Jons did not wait until jury deliberations to make this post: “gonna be fun to tell the defendant they’re GUILTY.”
In State v. Dellinger, Juror Amber Hyre sent a message to the defendant and appellant on Myspace. After she sent this message, Juror Hyre and Dellinger became Myspace friends and could read postings on each other’s pages. More significantly, when all the prospective jurors were asked if they had a business or social relationship with Dellinger, Juror Hyre did not say anything. Juror Hyre also failed to disclose that she was related by marriage to a witness, or her close friendship with the witness’s daughter. During the trial, Juror Hyre posted on Myspace about being in court that day but did not post anything substantive about the case. The trial court did not fault her for any of her postings.
On appeal, Dellinger argued that Juror Hyre’s lack of candor on voir dire should have been grounds for a new trial. The Court of Appeal reversed and ordered a new trial. The Court of Appeal held that “‘there is a fine line between being willing to serve and being anxious . . . . The individual who lies in order to improve his chances of service has too much of a stake in the matter to be considered indifferent. In this case, we hold that the trial court was clearly wrong in finding Juror Hyre to be a ‘fair and impartial juror.’ To the contrary, as demonstrated by the facts set forth above, Juror Hyre intentionally and repeatedly failed to be forthcoming about her connections to Appellant and witnesses Frame and Slaughter, arguably, in order to improve her chances of serving on Appellant’s jury.”
Counsel for the parties should make a point of asking the court to instruct the jury not to discuss the case on Facebook, Twitter, LinkedIn, a blog, or any social media and to remind the jury at different times during the trial. Even vague references to the case should not be permitted. If the jury is specifically instructed not to discuss the case on social media, and ignores this instruction, then the facts may be stronger for the court granting a motion for new trial.
As the above cases demonstrate, research on social media during the entirety of the trial may result in important details about the fairness of the trial and may even reveal a blog site or posts that can support a request to the court that the prospective juror be excused for cause.