Can a lawyer look at jurors' social media profiles to research them during a trial?

Plain-English summary

The committee applies Rule 3.5, which bars ex parte communication with members of the jury venire and sitting jurors, to internet and social-media research. It concludes lawyers may research jurors using search engines and social-media services as long as no communication with the juror occurs. The principal interpretive question is what counts as a "communication," a term the rule and the Model Rules leave undefined. Drawing on dictionary and local-rule definitions, the committee adopts a receiver-focused view: a communication is the process of bringing information to another's perception, including the fact that the juror has been researched.

On that understanding, the opinion concludes that a "friend" request, an invitation to connect, or an automated notification telling the juror that her profile was viewed is a prohibited communication if it lets the juror learn of the lawyer's research. Because Rule 3.5(a)(4) contains no intent requirement, the committee warns that even an inadvertent or service-generated notification may violate the rule (though it takes no position on whether a truly inadvertent communication is itself a violation), and it places on the lawyer a duty to understand the functionality and privacy settings of any service before using it. Search engines, which have no interactive features that alert the subject, may be used freely; interactive features that transmit anything to the juror may not.

The opinion adds two further limits and one affirmative duty. Under Rule 8.4(c), a lawyer may not use deception (such as misrepresenting identity or group membership) to access otherwise unavailable juror information, and under Rule 8.4(a) a lawyer may not have a third party do what the lawyer cannot. Under Rule 3.5(d), a lawyer who learns of juror misconduct through permissible research must promptly reveal it to the court and may not weigh whether the misconduct benefits the lawyer's side. Finally, the committee notes that Rule 3.5(a)(5) permits communication with jurors after discharge, subject to stated limits (no misrepresentation, coercion, harassment, or attempts to influence future service).

In practice

The opinion holds that, under the New York rules as they stood at the time, online juror research is permissible only when it transmits nothing to the juror. Per the opinion, the lawyer must understand each service's features and privacy mechanics before using it, must avoid friend requests, follows, messages, or any view-notifications, must not use deception or a proxy under Rules 8.4(c) and 8.4(a), and must promptly disclose any juror misconduct to the court under Rule 3.5(d). The same rules apply to venire members and sitting jurors alike, with mid-trial contact carrying mistrial risk.

Common questions

Q: Can I look at a juror's public Facebook or Twitter during trial?

A: Yes, the opinion concludes, provided your viewing transmits nothing to the juror. You may read publicly available postings, but you may not follow, "friend," or take any action that notifies the juror she is being researched.

Q: What if the platform automatically tells the juror I viewed their profile?

A: The opinion treats that notification as a communication that may violate Rule 3.5, even if the service generated it without your knowledge. It puts the burden on you to understand the service's functionality and to proceed with great caution where you cannot.

Q: Can I have a paralegal or investigator do it instead?

A: No. Per the opinion, Rule 8.4(a) bars doing through another what you cannot do yourself, and using a third party to communicate with or deceive a juror also violates Rule 8.4(c).

Q: I found a juror posting about the case. What do I do?

A: The opinion concludes you must promptly reveal the misconduct to the court under Rule 3.5(d), and you may not consider whether the misconduct helps your side.

Background and rules framework

The opinion interprets New York Rule 3.5 (impartiality and decorum of the tribunal; Model Rule 3.5), particularly the Rule 3.5(a)(4) bar on juror communication, the Rule 3.5(a)(5) post-discharge allowance, and the Rule 3.5(d) duty to report juror misconduct, together with Rule 8.4(a) and 8.4(c) (misconduct; dishonesty; acts through another; Model Rule 8.4). It draws on prior opinions, including NYCLA Op. 743 and NYC Bar Op. 2010-2.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.5 / NY RPC 3.5(a)(4), (a)(5), (d) (juror communication; post-discharge contact; reporting misconduct)
• Model Rule 8.4 / NY RPC 8.4(a), (c) (dishonesty; acting through another)

Cases:

• Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010), early investigation of juror litigation history
• Carino v. Muenzen, 2010 N.J. Super. Unpub. LEXIS 2154 (App. Div. 2010), internet research during voir dire

Other opinions cited:

• NYCLA Formal Op. 743: pretrial and trial social-media juror research without contact
• NYC Bar Formal Op. 2010-2: no access to social media under false pretenses

See also

• ABA Formal Op. 466: Reviewing jurors' internet presence
• ABA Formal Op. 508: The ethics of witness preparation
• NYC Bar Ethics Op. 2010-2: Obtaining evidence from social networking websites

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2012-2-jury-research-and-social-media/
• Original PDF: https://www.nycbar.org/wp-content/uploads/2023/05/20072303-FormalOpinion2012-02JuryResearchandSocialMedia.pdf