June 23, 2014 10:25:21 AM
SAN FRANCISCO -- Lawyers have been given the green light to scan the social media sites of jurors.
The American Bar Association says it's ethical for lawyers to scour online for publicly available musings of citizens called for jury service -- and even jurors in deliberations.
But the ABA does warn lawyers against actively "following" or "friending" jurors or otherwise invading their private Internet areas.
Though judges now universally admonish jurors to refrain from discussing trials on social media, the nationwide lawyers group for the first time is addressing how deeply attorneys, their investigators and their consultants can probe for information that might signal leanings of potential jurors, or unearth juror misconduct during trials.
Jurors' online postings have disrupted many legal proceedings over the years, causing mistrials and special hearings over the effects of Facebook musings, tweets and blog writings about their trial experiences. Lawyers and judges have also been wrangling over how far attorneys can go in assembling a jury with help from online research of jurors' social media habits.
A few judges have denied lawyers permission to research social media sites as overly invasive while others have allowed it. One company has gone so far as to develop a software product that promises to create a juror profile through social media posts and monitor jurors during the trial.
The ABA's ethics committee began reviewing the issue about two years ago and concluded in April that looking at Facebook posts, Twitter tweets and other information gathered passively is ethical research.
"It's like any other publicly available information," said Donald Lundberg, an Indianapolis, Indiana, attorney who helped draft the ABA's opinion as an ethics committee member.
Lundberg said one of the thornier issues for the committee was whether lawyers could view LinkedIn and other social media sites that notify members that they have been searched.
Ultimately, the ABA committee decided a LinkedIn search was ethically sound, which runs counter to an opinion issued by the New York City Bar Association in 2010 that said any notice sent to a potential juror about a search amounts to an unauthorized communication.
"We stay away from LinkedIn and similar sites," said Leslie Ellis, a Washington D.C. jury consultant. "We don't want to do anything that would make them uncomfortable to serve."
Ellis said her firm has been asked on occasion to conduct social media searches of prospective jurors, but only when their names are available days before they arrive at the courthouse. Ellis said prospective juror names generally aren't available until the morning jury selections begins and that time-constraints limit what can be found online.
"Social media searches are time consuming and expensive," Ellis said. "What takes so long is confirming that you found the right person."
At least two state bar organizations have addressed online searches of potential jurors.
The Missouri Supreme Court requires lawyers to research potential jurors' litigation history on a Web site that tracks lawsuits in the state. The Oregon State Bar published an opinion last year that's in line with the ABA guidelines, saying lawyers can access publicly available social media information, but can't actively "follow" or "friend" potential jurors.
The California State Bar, the biggest state bar in the country, has not addressed the issue, spokeswoman Laura Ernde said.
Some lawyers are sold on social media searches and have been following the practice for some time.
Last year, New York defense attorney Barry Berke hired a jury consultant firm and instructed it to search social media sites of potential jurors in the insider-trading case of Michael Steinberg. The consultant was looking for anti-Wall Street comments or other signs of possible bias. Prospective jurors thought to be biased were removed from the pool. Still, the former SAC Capital Advisors executive was convicted of insider trading and sentenced to 3 ½ years in prison.
Other lawyers who haven't searched previously now say they will embrace the practice.
"I will be doing it for every trial," said Khalid Sheikh, a suburban Detroit, Michigan, defense attorney.
Late last month, a jury was deliberating whether Sheikh's client was guilty of first-degree murder when the lawyer's 26-year-old son wondered aloud what the jurors were saying on social media sites.
"I said they shouldn't be saying anything," Sheikh said, but decided to check anyway. He discovered a juror had made Facebook posts about the case before and after he was empaneled.
After his client was convicted of first-degree murder, Sheikh asked for a new trial, alleging that the posts violated the judge's rule against jurors discussing the case. "Not cool a young man is dead another young man will be in prison for long time maybe," the juror allegedly said.
On Monday, the judge denied Sheikh's motion for a new trial, ruling the posting was innocuous. Sheikh plans an appeal.
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