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Thursday, Aug 28, 2014
Crime & Courts

Lawyers can peek at jurors’ social media

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— Picking jurors can be like reading tea leaves for lawyers who have only a short time to decide if strangers can be fair to their clients.

Whether the stakes are money or a person’s freedom or even his life, the jury system leaves the decision up to people who would otherwise be faces in the crowd.

In the old days, lawyers could only scrutinize jury candidates to see if they carried coffee mugs or wore T-shirts with the logos of NPR, say, or the NRA.

With the explosion of social media, though, many people now carry virtual signs signaling to the world their political beliefs and personality traits.

And some lawyers are paying attention. At least those who have the time and extra help during jury selection.

So if you’re called for jury service, don’t be surprised if some legal eagle peeks at your LinkedIn profile, checks out your tweets or peruses your public posts on Facebook.

“I would just advise the public generally to know anything they post is viewed,” said Susan Rozelle, who teaches criminal law, evidence and criminal procedure at Stetson Law School. “I think it’s a general practice to check social media profiles that anyone is expecting to interact with in a meaningful way.”

The Hillsborough State Attorney’s Office has an investigator who checks potential jurors’ backgrounds, including their social media posts, when empaneling juries for high-profile trials. But prosecutors do not have time to do that kind of research as a matter of routine, according to spokesman Mark Cox.

Although the courts and the Florida Bar have not yet weighed in on rules for lawyers who want to mine social media for tidbits about jurors, the American Bar Association in April issued guidelines saying public posts are fair game.

“There is a strong public interest in identifying jurors who might be tainted by improper bias or prejudice,” the guidelines state. “There is a related and equally strong public policy in preventing jurors from being approached ... by the parties to the case or their agents. Lawyers need to know where the line should be drawn between properly investigating jurors and improperly communicating with them. In today’s Internet saturated world, the line is increasingly blurred.”

The bar association sought to draw a line that keeps lawyers from violating existing prohibitions on contacting jurors and potential jurors directly or through another person. So while following the public social media trail is permissible, seeking a way to view restricted posts is not, according to the guidelines.

If a juror’s privacy settings on Facebook, for example, make her posts viewable only by friends, attorneys should not send a friend request or ask someone else to do that.

“An access request is an active review of the juror’s electronic social media by the lawyer and is a communication to a juror asking the juror for information that the juror has not made public,” the ABA guidelines say.

Some social media services inform users about the identities of people who have viewed their public posts.

If a juror learns that a lawyer looked at his profile this way, the ABA said, that does not violate the rule against contacting jurors.

The association made a comparison to driving through a juror’s neighborhood to see what anyone can see, which would be permissible. Stopping, getting out of the car and asking to look inside the juror’s house would be wrong. The last scenario, in which an Internet service informs users about who looked at their posts, was compared to driving down the street and being recognized by a neighbor, who tells the juror.

The bar association recommended that lawyers become familiar with the rules of social media platforms and take care not to search for information to create problems for others.

“Lawyers who review juror social media should ensure that their review is purposeful and not crafted to embarrass, delay, or burden the juror or the proceeding,” the guidelines say.

Tampa lawyer Steve Yerrid said he uses social media to research jurors because it’s important to learn as much as possible about the people who will decide cases.

Yerrid said any lawyer who abuses the process should be sanctioned.

“I think there’s a very clear line between invasion of privacy and full disclosure,” he said. “I want to make sure that anything that would be of significance to the court, to the parties, to the whole process be fully vetted.”

It’s important, he said, for the parties to know about a potential juror who, for example, has posted on Facebook that the justice system is out of control or discusses a criminal conviction.

“Jury selection is the singular most important function that a lawyer has during a trial,” Yerrid said. “I have often found potential jurors are very either reluctant or they seem to not really fully grasp the importance of coming forward with regard to past criminal involvement.”

It’s “tragic,” he said, to go through a long, complex trial only to find out at the end that a juror didn’t tell the truth during jury selection.

Yerrid said he has found relevant information about jurors through social media, but he didn’t want to give any examples.

“Any tool is only as good as the user,” he said.

Criminal defense lawyer Lyann Goudie said she doesn’t look up jurors’ social media profiles because she doesn’t have the time or the extra help during jury selection. Goudie said she usually doesn’t get the potential jurors’ names ahead of time and has to spend jury selection listening to and watching potential jurors’ body language and taking notes.

“It would be something that I would do if I had somebody to delegate the job to,” she said.

esilvestrini@tampatrib.com

(813) 259-7837

Twitter: @ElaineTBO

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