By Dr. Ken Broda Bahm:
As more and more Americans are moving their lives onto social media, the legal world is adapting. Specifically, litigators are coming to realize what a world of information this opens up for voir dire, and to acknowledge as well the responsibilities it creates. The Bar of New York City, for example, noted in a formal opinion on jury research and social media, “Standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case.” Internet research which “can blur the line between independent, private research and interactive, interpersonal ‘communication,” may still be a required part of the litigator’s standard of practice, but needs to be done ethically. As someone who routinely follows the breadcrumbs of panelists’ online presence, I can tell you that at times the relevant crumbs are few, yet at times, they can be precious. Selecting a jury in the wake of the George Zimmerman verdict, for example, I recently found reactions from several panelists providing an irreplaceable window into their current views on American justice. Those views are likely to be at least as trustworthy as anything the potential juror says in the courtroom. As much as we might expect our own managed profiles and public identities to reflect an ideal, I’ve noted research before showing the information itself tends to be fairly accurate.
Of course, when we talk about a social media analysis of the panel, we are talking about publicly available information, not information that is hidden or limited to a circle of friends. Failing to review those public statements is, to me, tantamount to choosing not to read an op-ed your potential juror has penned for the local newspaper. Still, there is a sometimes unrealistic expectation of privacy among panelists who may think their information is more private than it actually is. Lawyers and those working with them also carry ethical and legal responsibilities to avoid anything that could be seen as contact or influence regarding potential jurors. That, along with the general sense that there is something creepy and NSA-like occurring when one’s electronic footprints are being viewed, provide a good reason to cover your own tracks when doing so. As the sources multiply and the settings become more complicated, however, that can be easier said than done. A recent article by Matt Wetherington in the current issue of Verdict: The Journal of the Georgia Trial Lawyers Association provides an excellent overview of the current social media sources, as well as the practical and ethical concerns. If you don’t know your handle from your tweet, this article provides a very useful starting point. In this post, I draw from that article and build on some of my past advice on social media research in order to provide a simple list of three golden rules to follow so as not to blow your cover.
Going Beyond Google: Better Data (And Greater Danger)
The starting point for many an online search is to simply type the panelist’s name, plus perhaps a geographic limiter (“+Cleveland”) into the Google window (or Yahoo or Bing), and see what comes up. But there are a couple of problems with that broad-brush approach. Though much, but not all, of a person’s public online activity will be indexed by those search engines, that indexing takes time and information may not appear despite being on a public page. More concerning, however, is the fact that search results are heavily filtered based on your own browsing preferences, so two different people searching the same terms will often see results that are quite different.
In the Verdict article, Wetherington provides some good advice on using a few sites that specialize in aggregating an individual’s online information (like MyLife and Spokeo). But ultimately, retrieving specific information of interest will often require stepping beyond the big search engines and the aggregators. Searching within the source (e.g., searching for Facebook accounts from within Facebook, and looking for LinkedIn content from within LinkedIn) will get you more hits, but it also exposes you to a few additional risks.
In past posts, I’ve started my own lists on what is legitimate and what is over the line. In addition, there are also professional standards promulgated recently by the American Society of Trial Consultants. In this post, I want to build off of some of these guidelines for when searches are legitimate and focus on three simple and memorable set of rules for how to do it once you’ve determined it is legitimate.
The Golden Rules
One, Leave Your I.D. at Home
Probably the greatest challenge is to ensure that you aren’t leaving any kind of calling card showing that you visited. As Wetherington notes, some state bars have held that communication has occurred if a social media webstie simply notifies a target that a party or their agent has viewed their profile. Within Facebook, there is not as yet a means to see who has viewed your profile (though some scam ads claim to offer that ability, Facebook’s official word is that there is no way to do it). Still, it is definitely a good practice to log out of your own Facebook account before looking for your panelists’ public profiles, since that will prevent any accidental clicks from placing a “like” on their page. LinkedIn, however, is a different story, since that company positively markets the ability to see who has looked at your profile. Before reading profiles on LinkedIn, you will need to click on “privacy & settings” under your photo and “select what others see when you’ve viewed their profile” and then pick the option making you “totally anonymous.” That setting is unique to LinkedIn, of course, but it provides a good reminder to check on what your targets will see, and to take reasonable steps to make sure the answer is “nothing.”
Two, Don’t Make Friends
Notions of user-controlled privacy are starting to sink in among social media users. Based on research cited by Wetherington, more than two-thirds of Facebook users employ privacy settings to protect at least part of their online information. What that means is that you would need to initiate a step in order to join the user’s own select network and see all of the good stuff. But the number one principle is to avoid contact, and that’s a basic component of the rules of professional conduct. During a break at the courthouse, if you saw a group of potential jurors speaking with each other, you wouldn’t sidle up to them to see what they’re saying. Similarly, you cannot ethically send a “friend” or a “join my network” request to a potential juror. Whether the user has ten friends or ten thousand, that effort to join counts as a contact even if there is no other information shared.
Three, Don’t Open Any Closed Doors
An extention on that principle is that there is no getting behind a wall, no matter how flimsy, that the venire member has set up. Hacking a password would be an obvious intrusion, but there are more murky situations: Could one join a sub-group, in LinkedIn for example, that is open to the public in order to take a look at some comments your venire member has made within that group? Beyond the danger that your target would get a “Look Who’s Joined” message calling you out as a suspicious new group member, there is also the potential that this selective membership could be seen as contact or could be viewed as intrusive. As Wetherington notes, courts have erred on the side of greater protection for jurors’ privacy, seeking to avoid anything that would discourage jurors from being willing to serve. Even as some of these scenarios are not yet addressed, the best advice is to stick to a conservative route and respect any effort the panelist has made to comment in a less public forum.
As much as it focuses on the benefits and precautions of online research, the Wetherington article also concludes that, “The vast majority of information gleaned from these websites will be unhelpful.” The exceptions still make the search worthwhile, but it is never a substitute for effective oral voir dire. On that point, I agree emphatically with the article’s quote from North Carolina trial consultant Charli Morris: “I have, in a handful of cases, found information online that proved critical to our decision during jury selection. But I would trade all the online research in the world for effective attorney-conducted voir dire and cause challenges granted where appropriate.”
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Other Posts on Social Media as a Source:
- Account for Social Media Distortion
- Vet Your Public Persona
- Parties, Witnesses and Jurors: Don’t Be Afraid to Meet Them Face to Face(book)
- Beware of the Jury’s “Filter Bubble”
- Conduct a Social Media Analysis on Your Potential Jurors (But Beware of False Expectations of Privacy)
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Wetherington, M. (2013, Summer). Online Research of Potential Jurors: A Survey of Resources and Ethical Boundaries. pp. 16-19.
(Thanks to Charli Morris for pointing me to this article).
Image Credit: sludgegulper, Flickr Creative Commons