How do you leverage social media profiles in jury selection? This post explains what to look for, where to look, and ethical guidelines to consider.
Last Updated March 2024
Some estimates say that as many as 4.5 billion people (Statista) are using social media in 2023. This number includes includes attorneys, parties in the midst of litigation, and even jurors.
Given the large amount of information that people generally share over social media, there is a trove of information you can learn about individuals who may be involved in deciding your upcoming case. Such information can reveal biases and connections to parties that the prospective juror might not otherwise admit to.
However, before you start doing “deep dives” on every social media account you can find that is linked to a potential juror or paying for individuals to harvest any data they can find, it is worth slowing down and considering the ethical ramifications of using jurors’ social media information at trial.
There is generally no prohibition, ethical or otherwise, about looking at a juror’s public social media pages for information about them. From a prospective juror’s photos, posts, comments, and stories that they like, you can learn information such as the juror’s:
Depending on your juror’s questionnaire, some of this information may or may not be otherwise known but nonetheless valuable. For example, a juror who constantly retweets lawyer jokes aimed at defense lawyers may be a great choice for a plaintiff’s attorney. Similarly, knowing that your juror comes from a large family may help you build a bridge between your client and that juror by highlighting your client’s own large family.
Viewing a juror’s social media is not limited just to jury selection. While jurors are routinely admonished not to use or look at social media while a case is ongoing, attorneys are free to look at social media and make posts, so long as they do not make improper or prejudicial statements. Taking advantage of this could save you from a losing a trial due to juror misconduct.
If you notice a juror on your case is making comments about the case while it is ongoing, or is sharing information or news stories about the case before a verdict is rendered, such conduct could violate the judge’s orders and your client’s right to a fair trial.
Where you must be careful about using jurors’ social media comes when privacy settings prevent you from viewing all of the information you might otherwise like to see. Nearly every social media platform allows users to adjust their privacy settings in order to restrict what members of the public can see. These same settings can allow friends or people with special permission to view what the general public.
In this situation, your curiosity about what a juror is hiding from view may tempt you to subscribe or follow a juror’s social media feed. If they are using Facebook, sending them a Friend request and having them accept it can be the way to view information that others cannot.
However, doing something as innocent as sending a friend request or following a juror’s social media feed can land you in serious ethical trouble. Attorneys are prohibited from communicating in any manner with jurors or prospective jurors outside of the courtroom. Some courts can consider the mere act of liking a juror’s post or requesting to be a friend with the juror on social media as an act of prohibited communication.
This prohibition would likely extend to attorneys who are thinking of asking their friends or family members to do what the attorney cannot ethically do. Asking someone else to friend or follow a prospective juror could be viewed by a court in the same way as if you made the prohibited contact yourself.
Just as you should exercise caution in accessing jurors’ private social media information by attempting to contact or friend jurors, be wary of individuals or firms who offer to obtain personal and sensitive information about potential jurors. This information could have come from an illegal data breach or from some other less-than-legal means. Being involved in purchasing such data can lead to civil and criminal penalties, and may subject you to bar disciplinary actions as well.
Do not forget to check the social media accounts of your jurors after a trial has concluded. They may share thoughts or observations about the trial with their social media network, even if they did not share such comments with you at the conclusion of your trial. These insights and observations can be valuable to you for upcoming trials and help you make more strategic decisions and persuasive arguments in the future.
Once your trial has ended, the prohibition against contacting jurors is also lifted. At this time, you can usually safely contact jurors directly through social media to ask them their opinions. You can also friend them or follow their social media page, if they allow you to do so. In doing this, just remember that you should not harass a juror. If they do not want to speak with you, accept a friend request, or allow you view the private contents of their social media, you should respect this decision.
As long as you remain within the ethical guidelines and do not use social media to contact jurors before or during the trial, social media can be a useful tool to learn more about a jury pool. Any information you could gain from it is not worth risking your client’s case, your law license, or your freedom, so do not engage in any action or support any action that accesses private information illegally.
Once your trial is over, feel free to use social media to get in touch with jurors. Doing so can also help you dissect the outcome of your trial after it is over and better prepare for upcoming trials.
Social Media Collection Tools
Page Vault can help expedite the social media investigation process for potential jurors. Page Vault automates the collection of social media profiles such as Facebook, TikTok, Instagram, and Twitter (X) including all comments. Learn more about Page Vault software and service options for your social media collection needs.
