Lawyers Researching Jurors on the Internet

Lawyers Researching Jurors on the Internet[1]

 Thomas S. Farnish, Esquire

Larrimore & Farnish, LLP, Philadelphia

            In 2014, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466, concerning Lawyer Reviewing Jurors’ Internet Presence. Electronic Social Media (“ESM”) is pervasive in our society. Depending on privacy settings chosen, some internet information is available to the general public, while other ESM material is viewable only by those to whom the subscriber has granted access. This opinion provides that unless limited by law or court order, a lawyer may review a potential juror’s internet presence, which may include postings by the juror in advance of and during a trial, but an attorney may not communicate directly or through another with a juror or potential juror.

As long as there is no direct communication made to the prospective juror, conducting such an internet investigation should not violate Pa.R.P.C. 3.5. The professional guidance committees of bar associations throughout the United States have issued opinions indicating that it is proper for attorneys to search a juror’s publicly available webpages and ESM.[2] A formal opinion of the Pennsylvania Bar Association provides that “a lawyer may view the public portion of a juror’s social networking website, even if the website generates a notification to the juror that the lawyer has viewed it, but may not ask the juror for access to the private portion of the website.”[3]

            The ABA ethics committee recognized that there is strong public interest in identifying jurors who might be tainted by improper bias or prejudice. Comment 8 to Rule 1.1 of the PA Rules of Professional Conduct suggests that lawyers should keep abreast of relevant technology. The Committee on Professional Ethics of the Bar of the City of New York issued Formal Opinion 2012-2 indicating that “the standards of competence and diligence may require doing everything reasonably possible to learn about jurors who will sit in judgment on a case.” New Hampshire Bar Association opinion 2012-13/05, provides that lawyers “have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.”

            A standard question asked during voir dire concerns a prospective juror’s involvement in prior litigation. In Johnson v. McCullough,[4] the Supreme Court of Missouri affirmed the granting of a new trial to a plaintiff in a medical malpractice suit where one of the jurors had failed to disclose that she had been a defendant in multiple debt collection suits and in a personal injury lawsuit. The court noted that plaintiff’s voir dire question was clear and unambiguous: “Now, not including family law, has anyone ever been a plaintiff or a defendant in a lawsuit before?” Although numerous members of the panel responded affirmatively, juror Mims did not respond to the question and eventually was chosen to sit on the jury. When the jury returned a defense verdict after a six-day trial, plaintiff’s counsel did an internet search and discovered juror Mims’ litigation history.

            The Supreme Court of Missouri found that the failure to disclose these prior lawsuits violated the juror’s duty to give full, fair and truthful answers to all questions asked during voir dire. The trial court determined that Mims’ nondisclosure of her involvement in recent prior litigation was intentional and, therefore, it inferred prejudice from her concealment. Bias and prejudice is presumed if a juror intentionally withholds information and there is almost a per se rule mandating a new trial.

            Interestingly, however, the opinion in Johnson v. McCullough suggests that “with the relative present day ease of procuring the venire member’s prior litigation experiences … we encourage counsel to make such challenges before submission of a case whenever practicable.” The Court noted that it is not necessarily practicable for the attorneys in a case to investigate the litigation history of all of the selected jurors prior to the jury being impaneled. However, in very important dicta, the Supreme Court of Missouri noted that:

[I]n light of advances in technology allowing greater access to information ... it is appropriate to place a greater burden on the parties to bring such matters to the court's attention at an earlier stage. Litigants should not be allowed to wait until a verdict has been rendered to … search for jurors' prior litigation history when, in many instances, the search also could have been done … prior to the jury being impaneled. Litigants should endeavor to prevent retrials by completing an early investigation….[A]party must use reasonable efforts to examine the litigation history … of those jurors selected but not impaneled and present to the trial court any relevant information prior to trial. To facilitate this search, the trial courts are directed to ensure the parties have an opportunity to make a timely search prior to the jury being impaneled and shall provide the means to do so, if counsel indicates that such means are not reasonably otherwise available.

            The author is not aware of any similar decisions issued by the Supreme Court of Pennsylvania but, as we orient ourselves to the resources and new technology now available, we must certainly be cognizant of the possibility that a court may find that a post-verdict challenge to a jury panel, based on juror nondisclosure, may be held to be untimely.[5]

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[1] Originally published in The Verdict, published by the Philadelphia Trial Lawyers Association, 2015-2016, Issue 3.

[2] See, e.g., KY Bar Ass’n Op. E-434 (2012); NY County Bar Opinion 743 (2012); OR State Bar Ass’n Formal Op. 2013-189; NY State Bar Ass’n, Advisory Op. 843 (2010)

[3] PBA Formal Opinion 2014-300 (9/14)

[4] Johnson v. McCullough, 306 S.W. 3d 551 (Mo. 2010).

[5] It is also interesting to note that the failure of a juror to follow jury instructions by emailing other jurors about the case can result in criminal contempt sanctions against the juror. U.S. v. Juror Number One, 866 F.Supp.2d 442 (E.D. Pa. 2011); U.S. v. Rowe, 906 F.2d 654 (11^th Cir. 1990).