According to a recently issued opinion from the American Bar Association’s (ABA) ethics committee, it’s now considered within a lawyer or judge’s ethical boundaries to scan an already-selected juror or potential juror’s social media profiles.
Richard Gabriel, president of national trial consulting firm Decision Analysis, Inc., told CBS News that the ABA’s ruling simply put into writing what attorneys have already been doing for years.
“I think it formalizes what many attorneys have already been doing,” Gabriel said, adding that the ABA’s opinion “answers questions a lot of attorneys have been asking about what the parameters are when it comes to researching jurors ahead of time.”
The ABA’s roughly two-year review added that although it’s fine for attorneys to scan a juror’s public social media profiles on the Internet, they may not communicate with a person, such as friend request them or follow them on Twitter, to access private information. Additionally, the ABA’s opinion suggested that judges should begin to consider advising jurors that during the orientation process for a trial, their personal backgrounds will be inspected by lawyers, with social media profiles composing much of the attorneys’ digging.
Gabriel added that though there are pros and cons to lawyers looking into current and potential jurors’ social media profiles, in the interest of everyone getting fair trial, the positives ultimately prevail.
“Extra information is obviously a good advantage when you don’t have much to go on in the jury selection process,” Gabriel said, noting that access to a possible juror’s social media profile may help lawyers eliminate a person’s predispositions that could lead him or her to be impartial.
Keeping tabs on a juror’s social media activity, Gabriel added, can also come in handy during a trial, not just in the jury selection process.
“We always say you want to try your case to the audience you have. You want to keep in mind who your jurors are,” Gabriel said. “As your looking at the background of jurors, if they have a particular interest, then you can craft analogies and metaphors or examples to help that juror more clearly understand what your case is.”
The ABA’s opinion, however, does have its detractors, who argue jurors—like most people on the Internet—can be prone to posting ridiculous, sometimes outrageous things online without considering context and how strangers may interpret it.
“It opens up a real hornet’s nest,” Jim Cohen, a law professor at Fordham University, told CBS News. “I think it’s a bad idea. This stuff is still in its infancy.”
It’s worth noting, though, that the ABA’s word is by no means the law of the land, and it can be up to each state to determine how lawyers and judges can tread when it comes to jurors’ presence online.