Lawyers have an obligation to inform the court of 
evidence of jury bias discovered through social media.

I am an attorney who is about to begin a jury trial. I have obtained a list of all of the jurors and have gone on social media to learn about some of these jurors. I see information that would show that some jurors are extremely biased one way or the other. Do I have an ethical duty to advise the court if the jurors don’t state the bias they are showing in social media when they are questioned?

The question is an interesting one and one that lawyers are going to have to grapple with in the future. If the lawyer has done a lot of diligent work on social media and discovered that certain jurors are very biased toward the defense and this is a criminal case, what obligation does the lawyer have to tell the court that the jurors expressed great bias toward criminal defendants on social media, or something of that nature? Obviously, if they expressed a love of police officers, I am sure there would be no issue but to tell the court.

Social media is starting to take the fun away from trials. In the old days, it was the lawyer’s intuition and experience and judging a human being that were the mainstays of jury selection. Those qualities are still, I believe, the best resources to use to pick a jury. But many attorneys, particularly younger ones, have a different view, and social media reviews of a jury list are starting to become more commonplace.

What is the obligation then if the juror gets up and says he or she is going to be fair, etc., after the lawyer has social media or Facebook statements by that juror to the contrary? This is not the situation where lawyers actually presented or falsified evidence or assisted a witness to testify falsely. Under those circumstances, unless the witness is a criminal defendant, the lawyer has an absolute obligation to rectify the situation and advise the court. See Rule of Professional Conduct 3.3(a).

This is a difficult question. The lawyer wants to be a good advocate and gain every edge he or she can at trial. Lawyers can’t present false evidence or tamper with evidence, etc. But the lawyer has discovered through diligence that certain jurors may be very favorable to their position and these jurors are stating different positions during the voir dire. What duty does a lawyer have?

It is not a direct duty under Rule 3.3 or 3.4. This duty really goes to the whole essence of professionalism. Lawyers are professionals and the integrity of the court system is at issue. Jurors have already expressed extreme bias. Unfortunately, the opposing counsel or the court is not aware of it, but the defense lawyer is. It appears that the professional lawyer has an obligation to tell the court. Then those issues can be explored during voir dire.

Everyone knows that jurors will sometimes say something and then, when they understand the situation, say it differently. The preprinted questionnaire that all jurors have to answer often results in jurors making statements that they can’t be fair, favor the police, etc. But once the judge explains to the jurors their obligations, many jurors change that or explain they did not understand.

This is a difficult issue. It is the same issue if a juror is being picked and the client says he or she knows the juror and is a close friend of his or her family, etc. The juror hasn’t revealed that to anyone, but the lawyer now knows that. Under those circumstances, although the lawyer is not presenting any false evidence or presenting the juror as a witness, the lawyer has an obligation to point that out to the court. That close connection could clearly taint a jury panel.

Perhaps the closest rule that might compel a lawyer to do this, other than a sense of professionalism and desire to maintain the integrity of the system, is Rule of Professional Conduct 8.4(d), which states that a lawyer shall not engage in conduct that is prejudicial to the administration of justice. If the lawyer truly knows of a juror who is biased, whether it is through social media or the client telling him or her, then the failure to speak up could be prejudicial to the administration of justice.

Lawyers are more than football players on one side or the other. Lawyers are officers of the court with duties that flow to the court system. Under the question as posed, it appears that Rule 8.4(d) could be violated.

There is also a sub-issue of whether a lawyer should use social media to check a juror’s background. As long as the lawyer properly obtained the jury list and the lawyer does not mislead the juror or person on social media, then it appears the lawyer can. Obviously, a lawyer cannot have any communication with the proposed juror. That is clearly ex parte contact with a potential fact-finder. A lawyer can’t have an investigator go on Facebook and try to befriend the person. But if the lawyer just reads what is on Facebook and doesn’t have to mislead to gain access to Facebook or whatever social media is being used, then apparently that information could be used.

There is also another sub-issue. Most lawyers know that when they pick a jury, the court then wants all the questionnaires back with all of the personal information. The main reason for that is that over the years, criminal defendants have kept those and then later intimidated or threatened jurors.

Assuming a lawyer gets material or personal information on a juror through social media, can a lawyer give that information to the client, particularly in a criminal case? The answer should be no, because that could potentially place the juror or fact-finder at risk. The same way a lawyer wouldn’t give a client the judge’s home address or telephone number, the same should not be given to a defendant about a juror.

The same rules would appear to apply to the police and the prosecution, at least in a criminal case, if they discover such information. The law is very unclear and there is not a lot of case law on this particular subject.

Finally, use of social media during a trial is becoming very disturbing. People in the courtroom sending out text messages or newspaper reporters doing the same can potentially endanger witnesses throughout the trial. Jurors then read this information either on social media or in the newspaper and may be tainted.

Jurors also, despite being advised by courts not to look at any form of social media, seem to do it routinely. This problem is getting to the point that jurors cannot resist social media and probably will even express their opinions to other jurors or other people while they are still supposedly deciding the case or deliberating. This is a major problem and there are going to have to be further instructions to the jurors and perhaps some fairly substantial prison sentences of jurors who violate this prohibition so there can be some sort of deterrent effect.

Social media is unfortunately in the world and people govern their lives by a false sense that people are really interested in what they say. People want collective support through the interaction on social media. It is a sad commentary on where human nature is going.

But it is a becoming a major issue for jury trials. The bottom line is lawyers who are participating in trials have an obligation to the system itself, if they are aware of information through social media or abuse of social media by the fact-finders and/or witnesses, to bring this information to the court and opposing counsel.

A lawyer may not advise a client to delete potentially incriminating material from social media sites.

I am an attorney and in speaking to my client, the client showed me Facebook content and emails that are very incriminating to the client and/or evidence of the underlying criminal activity and/or civil activity the litigation is about. Can I tell the client just to delete those documents?

Of course, nothing can ever be truly deleted. It always exists somewhere. But the answer is no.

Particularly if this is a criminal case, this is like evidence of a crime. The lawyer in Pennsylvania cannot go in and destroy evidence of a crime or obstruct others from seeing it.

That resulted from a case in the 1980s involving two attorneys who did not produce the murder weapon they had discovered. Rule of Professional Conduct 3.4(a) clearly notes a lawyer cannot unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potentially evidentiary value or assist another person in doing such an act.

The fact that a criminal charge hasn’t been brought yet does not change that situation. Comment 1 to Rule 3.4 states as follows:

“The procedure of the adversary system contemplates that the evidence in the case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure and the like.”

Therefore, good and zealous lawyering does not allow a wink and a nod for a client to destroy material or to hide it. It is prohibited. A lawyer who does that risks not only a suspension, but potentially a disbarment.

The fact that emails or social media or other intangible electronic messages may hurt a client does not give anyone the right to destroy them. The Rules of Professional Conduct prohibit it and the good instincts of a true professional would preclude such conduct. 

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethicsfor more than 35 years. He welcomes questions and comments from readers. If you have aquestion, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.