By Hayes Hunt and Brian Kint
Social media is a mainstay in daily life. Over a billion people are registered users of Facebook. The Facebook logo and the logos of other social networking giants such as Twitter are quickly becoming as iconic as McDonald’s Golden Arches or Apple’s apple. As the popularity of social networking sites grew, industries scrambled to utilize such a powerful tool. The legal profession is no exception. Unfortunately, the combination of rapidly changing technology and slowly evolving law has created a potpourri of law in which little is settled or clear when it comes to social media and the courtroom. What is clear, however, is that attorneys who understand how social media can help or hurt their clients and have well-defined plans for tackling social media issues will be in the best position to successfully advocate for their clients.
Social media has made the world less private. Twenty years ago, the intimate details of people’s lives were written down in diaries and journals, stashed safely away from the rest of the world under mattresses or in locked drawers. Today, however, these intimate details are shared widely, regularly, and instantly. In fact, social media has created a new psychology in which the constant revelation of opinion and personal information is expected. This is especially true with younger generations who view social media as a way to interact with the world, not merely as a way to stay in touch with friends. Consequently, social media has produced a rich source of unfiltered opinions and intimate details that were inaccessible in past times.
Researching Potential Jurors
Perhaps one of the most powerful ways defense counsel can use this wealth of information from social media is by investigating potential jurors prior to trial and monitoring jurors for potential misconduct during trial. Attorneys can undertake a pretrial search of prospective jurors’ social networking pages — as long as they do not attempt to contact or communicate with the juror.1 In other words, attorneys can investigate potential jurors’ social networking content, but cannot “friend” them, send tweets or emails to them, subscribe to their twitter feed, etc. Nevertheless, the information publically available on a potential juror’s site can give valuable insight into how sympathetic that person may be to the defendant’s case.
Counsel can use this information to avoid having to use preemptory challenges during jury selection. For example, counsel can use social media to investigate a potential juror’s political affiliations, personal relationships, hobbies, charitable activities, and many other details that give clues as to how that person may feel about a particular case. Counsel can then use that information to formulate voir dire questions that will help expose any juror bias. In this way, counsel can get unsympathetic jurors excused without using valuable preemptory challenges.
Expanded access to information about potential jurors outside of the courtroom creates new ethical and practical dilemmas. What if an attorney discovers a case of clear juror bias using social media, such as a potential juror posting that the FBI is a corrupt organization full of nothing but liars? What if a prospective juror’s answers directly contradict the information on social media sites? Must the attorney tell the court? Must the attorney tell opposing counsel? Does the attorney have an ethical duty to do either as an officer of the court?
Arguably, Model Rule of Professional Conduct 3.3, requiring lawyers to display “candor toward the tribunal,” would necessitate that they notify the court of potential juror bias. The applicability of the rule, however, is far from certain. Some jurisdictions have attempted to clarify this ambiguity. For example, New York Rule of Professional Conduct 3.5(d) provides an explicit requirement that a lawyer must reveal evidence of juror misconduct to the court. In 2011, the New York County Lawyers’ Association on Professional Ethics issued an opinion stating that under Rule 3.5(d) lawyers who uncover juror misconduct through social media monitoring must promptly notify the court.
No matter what a lawyer’s ethical duties may be, United States v. Daugerdas highlights the practical effects of failing to disclose juror misconduct. The case stemmed from the tax evasion trial of David Parse and four co-defendants. Parse’s attorneys conducted an Internet search of one of the perspective jurors, Catherine Conrad. Their research revealed a 2010 Suspension Order suspending a Catherine M. Conrad from the practice of law. The name on the jury roll matched exactly the name on the suspension order, including listing the same middle initial. At voir dire questioning, however, Conrad had stated that her highest level of education was “a B.A. in English literature.” Therefore, Parse’s attorneys simply concluded that the prospective juror and the suspended attorney were two separate people.
Conrad was ultimately seated as Juror #1. Several weeks into the trial, she submitted a note to the court asking if the jury would be instructed on the doctrine of respondeat superior and inquiring about vicarious liability. No party had used these terms during trial. Conrad’s note led Parse’s attorneys to conduct additional Internet research. Their research again revealed the Suspension Order, but this time it also matched Conrad’s address and household information to information on the Suspension Order. Still, they failed to raise the issue with the court, finding it “inconceivable” that Conrad had lied during voir dire.
The jury reached a verdict at the conclusion of trial, convicting four of the five defendants, including Parse. Several days after the jury rendered the verdict, Conrad sent a letter to the government attorneys who had prosecuted the case; she commended them on the “outstanding job” they did on behalf of the government. The government eventually disclosed this letter to the court and defense counsel. This letter led Parse’s attorneys to conduct even deeper research into Conrad’s background. This research revealed that during voir dire, Conrad had lied extensively about her educational, personal, and professional background, including failing to disclose her legal education, her suspension from practicing law, and her extensive criminal background. As a result, several defendants moved for a new trial based on juror misconduct.
Ultimately, the court granted the motion as to all defendants except Parse. The court ruled that based on their preliminary investigations, Parse’s attorneys knew or should have known that Conrad had lied during voir dire. Further, their failure to bring this potential misconduct to the court’s attention waived Parse’s right to challenge the partiality of the jury based on juror misconduct. A defendant who knows of juror misconduct but fails to disclose it, the court reasoned, essentially has a risk-free trial. Therefore, “a defendant waives his right to an impartial jury if defense counsel were aware of the evidence giving rise to the motion for a new trial or failed to exercise reasonable diligence in discovering that evidence.”
The Daugerdas decision should not dissuade defense counsel from conducting Internet and social media research into potential jurors. What it should do is convince defense counsel that if the research uncovers potential juror misconduct, it should be disclosed to the court immediately. If there is any doubt, such as the identity issue in Daugerdas, counsel should dig deeper until that doubt is resolved one way or another. If it is not resolved, the attorney should err on the side of disclosure. Counsel should not risk inadvertently waiving a client’s fundamental rights by failing to raise the issue with the court.
Originally published in the December 2013 issue of The Champion.