How Much is a Lawyer Allowed to Snoop on a Juror's Facebook?
For years now different bars and judges have waffled over just how far lawyers can go with online researching of potential jurors: are they allowed to read Facebook pages? Twitter? LinkedIn pages? Some lawyers have searched wholeheartedly, making the most of the new social landscape the internet has carved out, learning what they could through online inquiries. Others wouldn't let themselves look, wondering if such practices amounted to an invasion of privacy. The ABA settled the matter in April of 2014, after two years of deliberation, concluding that researching Facebook posts, Twitter posts, and similar information which is publicly available constitutes ethical research.
With such a go-ahead, more lawyers are making Facebook checks than ever before. There are limits: lawyers have been warned not to "friend" or "follow" potential jurors, as that would be an invasion of privacy.
"It's like any other publicly available information," said Donald Lundberg, who aided in drafting the ABA's opinion, and as reported by the Associated Press.
Giving the go ahead on viewing such media as Facebook, as well as Twitter, and even LinkedIn, contradicting the New York City Bar Association's opinion of 2010, opens up avenues for screening jurors, but also for getting a sense on whether jurors are doing their job legitimately. After all, since the advent of this social media, many jurors have been reprimanded for discussing cases, if not denounced for causing a full-fledged mistrial, for leaking information or otherwise commenting inappropriately on cases via Facebook updates.
For instance, Khalid Sheikh, a lawyer from Detroit, checked up on a juror involved in a murder case. "I said they shouldn't be saying anything," said Sheik, but found the juror had mentioned the case on Facebook.
In light of this, Sheikh vowed "I will be doing it for every trial."
This might be some added bother on top of the typical attorney's responsibility. As Leslie Ellis, a Washington D.C. jury consultant said, according to the Associated Press, "Social media searches are time consuming and expensive. What takes so long is confirming that you have found the right person." After all, many different people on Twitter, Facebook, and LinkedIn have the same name, and not all of them provide photos of themselves.
Sniffing out an opportunity, one company has offered to aid lawyers with such internet sleuthing. Whether this becomes a thing remains to be seen, but at least this much is certain: the evolving nature of social media has once again changed the legal sphere in turn, altering how jurors adjudicate and how lawyers prosecute. And so it always shall be, with the law striving to keep in step with the changing landscape of social media.
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