Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.


Who Is That Juror: Ethics and Juror Investigation

So, it is jury selection time and given the often truncated voir dire afforded attorneys in today’s trial courts, the attorney is often thirsty for knowledge of the venire in order to effectively exercise challenges. If you have ever seen the movie "Runaway Jury" you probably envied the tobacco company defense attorney wearing an ear piece in which he was fed all the personal information from a secreted war room where instantaneous investigation was being conducted of each prospective juror.

This technology, depicted more than 10 years ago, was somewhat fanciful at the time, as it was intended to illustrate the unlimited resources of the tobacco industry. But, as we all know, that time is here as most people put something about themselves on the internet in some form of social media. So, how far can the trial lawyer go during voir dire or after the jury is selected to investigate jurors? It may surprise you to know that not only do you likely have a right to run computer searches on prospective or sitting jurors, you may have a duty to do it.

First, what you can’t do. California Rule of Professional Conduct (CRPC) 5-320 prohibits any direct or indirect communication by anyone connected with the case with “anyone the member knows to be a member of the venire . . .” from which the jury will be selected or with any juror during trial. Additionally, an attorney not connected with the case is prohibited from communicating with any juror “directly or indirectly” concerning the case. This would include “friending” someone in some manner through social media.

But what can you do and what should you do? You can use social media for juror research as long as there is no communication with the juror. (American Bar Association, Formal Opinion 466: Lawyer Reviewing Jurors' Internet Presence (April 24, 2014; New York City Bar Association’s Committee on Professional Ethics (Formal Opinion 2012-2). But friending1 a juror on, for example Facebook, is likely a violation of Rule 5-320. (See, San Diego County Bar Association Legal Ethics Opinion 2011-2; New York State Bar Association Ethics Opinion 843 (2010); New York County Lawyers Association published Formal Opinion 743.)

Your possible duty to conduct research on the jury is where it becomes interesting. The New York City Bar Association has opined that “standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case.” (Opinion 2012-2). The opinion also states “there are no clear rules for conscientious attorneys to follow in order to both diligently represent their clients and to abide by applicable ethical obligations.” Id.

Missouri gives counsel an affirmative right and duty to check for any litigation a prospective juror may have been a party to by using internet sites. The attorney then has an affirmative duty to bring to the court anything they found, before the jury is sworn or waive their right to object later. (Rule 69.025 - Rules of Civil Procedure). There are even companies http://www.juryscout.com, http://www.brandwatch.com,  that claim they will scour the internet for information on your jury pool.

In California, if counsel finds misconduct by the juror, it must promptly report it to the court. Rule 5-320(G) states: "A member shall reveal promptly to the court improper conduct by a person who is either a member of a venire or a juror, or by another toward a person who is either a member of a venire or a juror or a member of his or her family, of which the member has knowledge." 

So make sure your internet access is in place for trial and feel free to Google your prospective jurors. But also, be technically savvy enough to ensure your research will not come to the attention of the jurors as that may be construed as a communication and therefore a violation of ethical rules.

-- Michael Crowley

Thanks to attorney Chuck Sevilla for his articles that were invaluable to the writing of this Ethics in Brief.

1Attempting to “Friend” a person on Facebook causes a request to be sent the person and if they accept a person would likely have access to more personal information about the person.

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**