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Mark A. Berman Mark A. Berman

The recent New York State Court of Appeals decision in People v. Neulander, 2019 NY Slip Op 07521 (Oct. 22, 2019), underscores the significance of a juror’s improper use of social media, which can rock the foundation of a party’s right to a fair trial. The decision should give counsel pause as to whether he or she should be retaining a jury consultant or license software that could monitor jurors’ public social media posts during venire selection, trial, deliberations and thereafter. Such monitoring, as discussed below, however, must be consistent with counsel’s ethical obligations not to communicate with a juror by inadvertently causing an electronic communication to be sent to the juror that would alert him or her to the name of counsel who had viewed their social media.

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