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.


Social Media, Juries, and Interconnected Ethical Duties

To err is human but to really foul things up you need a computer. 
(Prof. Paul Ehrlich, Stanford Univ.).

Computers and the interconnected nature of modern society have created new and unexpected challenges to the legal system.  Specifically, the ease and ubiquity of communication through social media present a threat to the fair jury.  This installment of Ethics in Brief will examine the connection between fair juries and the use of social media from two perspectives: the use of social media by lawyers, and the use of social media by jurors.

Lawyers Using Social Media

At times, the lawyer’s duty of competence bumps against other ethical obligations, and several bar associations have issued opinions on the ethical use of social media. For example, in a recent posting, Carol Buckner suggested that the lawyer’s duty to “perform work competently . . . may require lawyers to conduct an online investigation of jurors, including looking at social media.”  (Carol Buckner, Legal Ethics, Social Media and the Jury, OC Lawyer, Orange County Bar Association (2013); see also, Cal. R. Prof. Conduct 3-110, and Model Rule of Prof’l Conduct R. 1.1, Comment 6 (2012)).  But undertaking this type of investigation requires caution: lawyers must maintain fidelity to rules against direct or indirect communication with jurors, as well as rules prohibiting actions that might influence the juror’s state of mind. (Cal. R. Prof. Conduct 5-320).  The line can be difficult to draw and requires the lawyer to acquire a thorough understanding of the underlying technology.  Thus, reading a juror’s blog post may be acceptable, but following a juror’s Twitter feed may be a prohibited communication. (Buckner, supra).

The New York Bar opined that a lawyer may perform a pre-trial search of a prospective juror’s social network webpages, as long as there is no communication with the potential juror.  (N.Y. Cnty. Lawyer’s Ass’n Comm. On Prof’l Ethics, formal Op. 743 (May 18, 2011)). The lawyer may not “friend” a juror, tweet with the juror, or engage in any activity that alerts the juror to the lawyer’s action. (Id.).  Of course, the lawyer may not engage in a ruse or any deceitful or dishonest action.  (Id.; see also, Cal. Bus. & Prof. Code § 6106 (permitting lawyers to use “means only as are consistent with truth.”)).

In a related analysis, San Diego County Bar Legal Ethics Opinion 2011-2 noted that a “friend” request to an adverse party would be inappropriate. The Opinion reasoned that because the technology leaves a record of the visit, the action may be deemed an indirect form of communication.  (Id.)  Applying the rationale to the juror context, a “friend” request to a potential juror would likely be deemed a communication in violation CRPC 5-320.

Jurors Using Social Media

Are jurors tempted to use social media during a trial? Evidence from around the country suggests that a variety of issues arise from juror’s use of social media during a trial.

The Supreme Court of Tennessee recently remanded a case for a hearing where a juror initiated a Facebook conversation with a trial witness after the witness testified.  (State v. Smith, 418 S.W.3d 38 (Tenn. 2013); 2013 WL 4804845 (Tenn. Sept. 10, 2013)).  While noting that “new communications technology has exponentially increased the risk that jurors will conduct research and investigate the law and facts on their own,” the court reaffirmed the importance of the integrity of the jury system. (Smith, 418 S.W.3d at 47.)  “[T]his technological age now requires trial courts to take additional precautions to assure that jurors understand their obligation to base their decisions only on the evidence admitted in court.”  (Smith, 418 S.W.3d at 50).

Meanwhile, the Kentucky Supreme Court distinguished Facebook friends from “true” friends. In a case where two jurors failed to disclose Facebook “friend” status with the mother of the victim, the court stated “’friendships’ on Facebook . . . do not necessarily carry the same weight as true friendships or relationships in the community.”  (Sluss v. Commonwealth, 381 S.W.3d 215 (Ky. 2012)). Nonetheless, the court ordered an evidentiary hearing to determine the relationship between the parties. (Sluss, 381 S.W.3d at 222).

But juror tendencies to use social media may be overstated, and may be remediated.  In a recent study, jurors completed a questionnaire asking whether they had been tempted to use social media during a trial.  (Hon. Amy St. Eve, Hon. Charles P. Burns, Michael Zuckerman, More from the #Jury Box: The Latest on Juries and Social Media, 12 Duke L. & Tech. Review 64 (2014)).  Nearly 600 jurors participated in the study, and approximately 8% of jurors were tempted to use social media during the trial.  The percentage was almost identical among jurors in federal court (8.38%, N=358) and state court (7.55%, N=225).

Jurors were also asked what measures would be effective in helping them maintain the obligation not to communicate about their jury service. Most jurors reported that the judge’s instruction prevented them from improperly using social media. (See, e.g., Judicial Conference Committee on Court Administration and Case Management, Proposed Model Jury Instructions: the Use of Electronic Technology to Conduct Research on or Communicate About a Case (June 2012), and Judicial Council of California, Cal., Civ. Jury Instrs. [CACI] Nos. 100 and 500, Cal. Crim. Jury Instrs. [CALCRIM], Nos 101 and 201).  The authors of the study (a federal judge, a state judge and a practitioner) concluded: that “jurors tend to follow properly crafted social-media instructions; that jurors generally appreciate their critical role in the judicial process; and that these conclusions apply with equal force to jurors in both federal and state court.”  (12 Duke L.& Tech. Rev. at 91.) They recommended early and frequent instruction about the use of social media. (Id.)

Conclusion

These examples highlight the need for “early and frequent instruction” on the use of social media for both lawyers and jurors.  As lawyers, we bear the responsibility to protect the foundations of our judicial system.  The unbiased and impartial jury stands as a pillar of our judicial system, and we must work diligently to preserve the integrity of the jury system in an age of technological advances.

– Timothy Casey, California Western School of Law

**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.**