In a recent formal ethics opinion, the American Bar Association found that attorneys can research prospective jurors on the internet, including social media websites such as Facebook and Twitter, and use that information in the jury selection process. The ABA recommends that “judges should consider advising jurors during the orientation process that their backgrounds will be of interest to the litigants and that the lawyers in the case may investigate their backgrounds, including review of [Facebook and Twitter].”
The ruling may be troublesome to apply in the context of Connecticut’s individual voir dire process.
In the typical individual voir dire in Connecticut, the prospective juror sits in a conference room or a courtroom with the lawyers. The examinations of the prospective jurors tend to be wide-ranging and somewhat personal. It is not unusual in a medical malpractice action, for example, for the prospective juror to be asked about his or her medical conditions and whether the prospective juror has had medical procedures similar to the procedures involved in the case. It is also more and more common for lawyers to bring internet-connected laptops and smartphones to jury selection.
If lawyers are permitted to do internet research on prospective jurors, there is nothing to prevent the lawyers from accessing the internet while the prospective juror is being examined. This has the potential of a prospective juror being fact-checked while questioned. If the juror says something inconsistent with something on the internet, there is the potential for the lawyer to essentially impeach the prospective juror with the internet information. The question is whether this process is fair to potential jurors who are there to do their civic duty, not to be cross-examined.
The ethics opinion goes further to find that if “in the course of reviewing a juror’s or potential juror’s Internet presence … a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.” It is not clear whether simply saying something in voir dire that is inconsistent with a posting on Facebook would rise to the level of a “fraudulent” statement. However, the rule appears to place some type of reporting requirement on the lawyer who discovers information on the internet that may be inconsistent with the information provided by the prospective juror in voir dire.
The combination of allowing lawyers to do internet research on jurors and requiring the reporting of potential inconsistencies has the potential to make jury selection more adversarial and less pleasant for the citizens who are doing their civic duty. It also feels wrong to have a bunch of lawyers scrutinizing a juror’s Facebook account looking for “criminal or fraudulent” activity just because they showed up for jury selection. How many prospective jurors would want to show up for jury selection knowing this was part of the bargain? We call on the Connecticut Bar Association and the Judiciary to craft a better policy that takes into account the unique circumstances of jury selection in Connecticut.