If you are serving as a juror these days, you need to know that lawyers are snooping around your social media profile before you even step foot into a courtroom. Is this an invasion of privacy, or simply due diligence on the part of the lawyer?

The practice of lawyers researching the social media profiles of prospective jurors is being examined by judges conducting trials in both state and federal courts, as well as by the American Bar Association. In 2014, the ABA issued a statement that lawyers can and should conduct due diligence for their clients heading to trial by researching jurors' profiles.

This practice received much attention in a recent jury trial in federal court that pitted Google against Oracle. In the lead up to the trial, it came to the federal judge's attention that the big-time lawyers were conducting mining operations on the prospective jurors.

The judge in this case, with jurors' privacy rights in mind, required that the lawyers in the case inform him of the scope of their juror research. He further ordered that if the scope of the jury research included their social media platforms, the jurors were to be offered the opportunity to adjust their privacy setting in advance of the lawyers' scrutiny.

When a case heads to a jury trial, jurors are summoned to the court well in advance of the trial date with a notice and a questionnaire they must complete regarding basic data such as their employment, marital status and prior involvement with the court system. This information, along with their address, is accessible to the attorneys involved in the case.

A lot can be learned about a person if this data is used for further personal research. Social media, in particular, is a veritable goldmine of public information that is useful to gleaning how a juror may view a particular case.

Some lawyers, however, go too far and attempt to "connect" or "friend" the person on social media in order to delve deeper into their electronic profile. This practice has been disavowed by the ABA, and gives lawyers a bad name if you were to ask us here at the Law Blogger.

Various state High Courts have began to weigh in on the issue. The Kentucky Supreme Court, for example, overturned a murder conviction on the basis that the victim's mother was Facebook friends with one of the jurors.

Social media users should keep in mind that their posts are not private. There are lawyers lurking about, apparently mining your data as soon as you are summoned for jury duty.

Post #553

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After 4-months of proofs, the capital murder case against Jodi Arias has [finally] been submitted to the jury for deliberation and a verdict.  Although the murder of Travis Alexander occurred in 2008, the jury was not empaneled until January 2, 2013.

In an interesting preliminary decision, the presiding judge elected not to sequester the jury.  This means that, although they were provided with a daily admonishment not to discuss the case with anyone outside the courthouse, jurors were left to their own devices when faced with the saturation-media coverage of this trial.

We here at the Law Blogger have posted on the topic of social media and the jury pool, and the problems presented by jurors that seek information about their case outside the courtroom.  In such high-profile cases, the jurors realize they are a part of our lurid true-crime history. 

These folks thus become high-profile jurors.  Many hire attorneys or agents after the trial to discuss lucrative media appearances; even book deals. 

Being in the profession of defending the accused, we wonder over here at the Law Blogger how many of the jurors assigned to this case have succumbed to the temptation of tuning into the media coverage of their case.  How many jurors have Googled some of the witnesses, particularly the experts, that testified in this case?

If any such forays come to light [and let's not forget that every Internet user's keystroke is recorded] this defendant will have at least one good appellate issue.  In our opinion, Judge Sherry Stephens should have sequestered this jury or at least obtained their known IP addresses, and she should have concluded the trial in February, not May.

Such cases give our media-rich culture the opportunity to marinate in the art of lawyering.  Some camps favor the prosecutor; others relish the art of defending the accused.

One thing is for sure -these high profile murder trials cement our collective national fixation with sex, religion and violence.  Not that each of us are latent dysfunctional bi-polar borderline personality stalkers.  Yet, as a nation, we just love the spectacle of the public trial; especially a capital murder trial.  Such trials have taken the place of a public execution in the town square.

Even with an inevitable jury conviction of some degree of homicide, unfortunately Ms. Arias will be with us for decades.  We here at this blog can already see the appeals beginning to form...

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It took some time, but now the cases are starting to pile-up.  This week's WSJ treats us to a summary of recent "social media" eruptions in the jury trial context.

The basic problem: a jury trial is conducted in accord with the applicable rules of evidence, court rules, and statutes.  When jurors log onto the Internet to obtain additional information [about the parties to the suit, the lawyers, or the judge], or to comment, they are exposed to data and opinion beyond the scope of the applicable rules.  This can and does affect the outcome of a trial.

The case highlighted in the WSJ was a 2010 murder conviction overturned, in part, because a juror ignored the admonishment of the judge, and tweeted the jury's verdict to the public prior to it being read in court.  Now, the defendant will stand trial again this summer.

In other courtrooms, despite explicit instruction from the trial judge that jurors must not discuss the case among themselves until the proofs are complete and they are formally deliberating, jurors have been known to exchange contacts and begin texting one another.

A Florida juror recently spent 3-days in jail for "friending" a defendant on Facebook so he could either get a date with the woman, or get out of jury duty.

A case in the California appellate courts hinges on whether a juror in a case must now disclose his social media activity to defense attorneys in a gang-beating case so the attorneys can determine whether to challenge their client's conviction based on the juror's social media activity.

Judges have a range of options when juror misconduct mars an ongoing trial.  Those options include: punishing the juror for contempt (i.e. jail or a fine); removing the objectionable person from the jury (there is always at least one alternate); and declaring a mistrial and starting the trial over.

The WSJ article cites to a potential test case: the Drew Peterson case in Illinois.  In that case, defense attorney Joel Brodsky is considering ways to prevent jurors from acquiring information about the case outside the courtroom.  One idea under consideration is for the jurors to disclose their IP addresses and social media handles so they can be monitored.  Along these lines, technicians are suggesting the installation of cookies so that if a juror accesses the Internet about the case in any way, the juror's foray is reported to the trial judge.

Can the centuries-old jury trial system withstand such developments?  Is there any effective way to prevent seated jurors from accessing the media about the case to which they have been entrusted?

As litigators, we here at the Law Blogger realize this truly is a "Brave New World".  When you ramp-up for a trial, and focus on the scope of the evidentiary issues in the case, it is very unsettling to think that, with a few points and clicks, a juror can unearth a veritable treasure trove of [inadmissible] information about you, your client, or your case. 

In almost every case, such additional information will sway the juror's opinion and somehow affect the outcome.  Turning a trial into a popularity contest is not a fair way to administer justice.

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