By Dr. Ken Broda-Bahm:
As more and more Americans are moving their lives onto social media, the legal world is adapting. Specifically, litigators are coming to realize what a world of information this opens up for voir dire, and to acknowledge as well the responsibilities it creates. The Bar of New York City, for example, noted in a formal opinion on jury research and social media, "Standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case." Internet research which "can blur the line between independent, private research and interactive, interpersonal 'communication," may still be a required part of the litigator's standard of practice, but needs to be done ethically. As someone who routinely follows the breadcrumbs of panelists' online presence, I can tell you that at times the relevant crumbs are few, yet at times, they can be precious. Selecting a jury in the wake of the George Zimmerman verdict, for example, I recently found reactions from several panelists providing an irreplaceable window into their current views on American justice. Those views are likely to be at least as trustworthy as anything the potential juror says in the courtroom. As much as we might expect our own managed profiles and public identities to reflect an ideal, I've noted research before showing the information itself tends to be fairly accurate.
Of course, when we talk about a social media analysis of the panel, we are talking about publicly available information, not information that is hidden or limited to a circle of friends. Failing to review those public statements is, to me, tantamount to choosing not to read an op-ed your potential juror has penned for the local newspaper. Still, there is a sometimes unrealistic expectation of privacy among panelists who may think their information is more private than it actually is. Lawyers and those working with them also carry ethical and legal responsibilities to avoid anything that could be seen as contact or influence regarding potential jurors. That, along with the general sense that there is something creepy and NSA-like occurring when one's electronic footprints are being viewed, provide a good reason to cover your own tracks when doing so. As the sources multiply and the settings become more complicated, however, that can be easier said than done. A recent article by Matt Wetherington in the current issue of Verdict: The Journal of the Georgia Trial Lawyers Association provides an excellent overview of the current social media sources, as well as the practical and ethical concerns. If you don't know your handle from your tweet, this article provides a very useful starting point. In this post, I draw from that article and build on some of my past advice on social media research in order to provide a simple list of three golden rules to follow so as not to blow your cover.