Mining prospective jurors’ social media accounts is a common practice for many attorneys looking to spot biases that might cost their clients a fair trial.
The American Bar Association has said the searches are ethical, and a ruling by the Missouri Supreme Court argues that attorneys have a duty to do online research of prospective jurors. Still, some judges have deemed the online searches invasive and banned them.
Now, a federal judge’s ruling in a copyright battle between Silicon Valley heavyweights Oracle and Google has reignited debate about the practice while also offering a potential middle ground.
U.S. District Judge William Alsup, raising concerns about prospective jurors’ privacy, said attorneys could research the jury panel, but would have to inform it in advance of the scope of the online sleuthing and give the potential jurors a chance to change online privacy settings.
“Their privacy matters,” the judge said in March.
Attorneys for Google and Oracle agreed to do without the searches.
The ruling prompted a fresh wave of discussion in legal circles about how aggressively attorneys should be allowed to investigate jurors’ online personas and how beneficial the searches are.
“What Judge Alsup has done is truly unique,” said Thaddeus Hoffmeister, a professor at the University of Dayton School of Law who studies the impact of social media on the legal system. “This may be a route other judges suggest going forward.”
There are also limitations to online digging. Attorneys generally get a list of the jury pool selected for their case days in advance. But the lists can have hundreds of names, making the online research time-consuming and costly.
Robert Gibson, a New York attorney with the firm Heidell, Pittoni, Murphy and Bach, said the Missouri case shows the importance of thoroughly vetting jurors’ online profiles in advance to avoid wasting a court’s time and money on jurors who are not suitable to serve, and supports the thinking among some attorneys that it’s their responsibility to fully investigate potential jurors.
“If you have the opportunity and you’re not reviewing all publicly available information with respect to a juror, are you doing the right thing for your client?” he said.