CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, April 28, 2016

Joy & McMunigal on Researching Jurors' Presence on the Internet

Peter A. Joy and Kevin C. McMunigal (Washington University in Saint Louis - School of Law and Case Western Reserve University School of Law) have posted ABA Approves Researching Jurors' Public Presence on the Internet (Criminal Justice, Vol. 29, No. 3 (2014)) on SSRN. Here is the abstract:

Electronic devices and their ubiquity, along with the Internet and social media, create a host of challenges for the jury system. One is the risk that jurors may communicate improperly during a trial. Another is the risk that jurors may attempt to do their own factual or legal “research” about a case, in effect doing an end run around the limitations established by the rules of evidence. Lawyers using the Internet to find information about potential jurors during jury selection pose an additional challenge. Competency may well require a lawyer to do such electronic research. But at the same time, a lawyer is prohibited from communicating with or influencing a juror outside the courtroom. Ethics authorities in a number of states have addressed these issues in recent years, and the ABA has recently weighed in on them as well.

The ABA Standing Committee on Ethics and Professional Responsibility recently issued an advisory ethics opinion explaining that, unless limited by law or a court order, a lawyer may review a juror’s or potential juror’s background and presence on websites and social media.

In Formal Opinion 466 (Apr. 24, 2014), available at http://tinyurl.com/pqv9dbn, the standing committee explains that Model Rule 3.5(b) prohibits a lawyer from communicating ex parte with a juror or prospective juror, but a lawyer may review a juror’s public presence on the Internet. However, a lawyer may not request access to a juror’s social media accounts, concluding that such a request would violate Model Rule 3.5’s prohibition against ex parte communication with a juror.

This ethics column analyzes this advisory ethics opinion in light of the ethics rules and new trends in how lawyers are using the internet in the representation of their clients.

https://lawprofessors.typepad.com/crimprof_blog/2016/04/joy-mcmunigal-on-researching-jurors-presence-on-the-internet.html

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