At a recent seminar, one of the sessions was a nuts-and-bolts discussion of conducting Internet, mostly social media, research into prospective jurors for voir dire purposes.  It was quite interesting from a practical standpoint, but no law was cited that such research was even allowable (assuming courts could detect non-courtroom activities), and if so, what restrictions apply.

So we thought we’d take a look.

Spoiler alert – we didn’t find very much, and what we did find was all over the lot.

The most recent appellate decision we found viewed Internet research into public information about prospective jurors favorably. In the course of approving the use of a “confidential,” but not “anonymous,” jury, the Hawai’i Supreme Court, quoting a treatise, stated:

The defense and prosecution lose the ability to uncover useful information for jury selection and trial purposes. . . .  [T]he internet, and in particular social media offers the possibility of a rich source of information about jurors that escapes the constraints of formal voir dire and at the very minimum, pre-trial investigation of potential jurors can provide counsel with the justification for more probing voir dire questions.  And it can provide a direct basis for a cause challenge to a particular juror. . . .  With the potential jurors’ names in hand, handy info is keystrokes away.

Here, the defense and prosecution knew the prospective jurors’ names.  Before (and during) jury selection, the lawyers had a chance to learn more about these citizens.  The court’s method did not deprive the parties of information-gathering techniques, like online and social media research, that might discover helpful information to challenge a juror for cause, exercise a peremptory challenge, or tailor an argument.

State v. Lafoga, 526 P.3d 506, 511 (Haw. 2023) (citations and quotation marks omitted).  At least in Hawai’i, use of Internet resources as an adjunct to voir dire seems well accepted.

Other cases were often concerned with the timing and disclosure of computerized juror research, specifically the tactical withholding of adverse information.  Sluss v. Commonwealth, 381 S.W.3d 215 (Ky. 2012), “addressed counsel’s investigation of jurors by use of social media” as a matter of first impression.  Id. at 226.  However, also at issue was the timing of the research – not until after an adverse verdict.  Sluss acknowledged lack of guidance on this issue:

[W]hile the practice of conducting intensive internet vetting of potential jurors is becoming more commonplace, “lawyers are skittish about discussing the practice, in part because court rules on the subject are murky or nonexistent in most jurisdictions.”

Id. at 227 (quoting Grow, “Internet v. Courts: Googling for the Perfect Juror,” Reuters (Feb. 17, 2011)).  “If the information about a juror is available to the public on a social media site, ethics opinions from other jurisdictions suggest that counsel may investigate that information.” Id. (citation omitted).  This uncertainty led Sluss to cut the defendant a break on timing:

While much of this information is likely public, a reasonable attorney without guidance may not think this investigatory tactic appropriate, and it is still such a new line of inquiry that many attorneys who themselves are not yet savvy about social media may never even have thought of such inquiry.

Id.  But that was in 2012.

On appropriateness, Sluss quoted and endorsed N.Y. R. Prof. Cond. 3.5, which permitted ongoing investigation of juror social media during trial.  381 S.W.3d at 227-28 & n.12 (extensive quotes).  Since Kentucky had a similar rule, “[t]he New York ethics opinion provides reasonable guidance for counsel.”  Id. at 228.  Sluss remanded the case because merely being Facebook “friends” was not alone disqualifying, since on Facebook “a person can become ‘friends’ with people to whom the person has no actual connection.”  Id. at 223 (citation and quotation marks omitted).  See McGaha v. Commonwealth, 414 S.W.3d 1, 6 (Ky. 2013) (“merely being friends on Facebook does not, per se, establish a close relationship from which bias or partiality on the part of a juror may reasonably be presumed”) (citing Sluss).

Roberts v. Tejada, 814 So.2d 334 (Fla. 2002), rejected the lower court’s imposition of a voir dire requirement to search prospective jurors’ litigation histories:

Our court system does not yet have the uniform capacity to provide a readily accessible system for undertaking a review of the court index together ready access to the court files.  Under present circumstances, the burden of imposing such a prerequisite to a later valid challenge to juror nondisclosure would be onerous.

Id. at 344-45.  Instead, trial judges, on “request,” and where “it can be done without unwarranted delay,” “should allow counsel to check records.”  Id. at 345. By social media standards, Roberts was a long time ago.

In Carino v. Muenzen, 2010 WL 3448071 (N.J. Super. App. Div. Aug. 30, 2010), the trial court prohibited plaintiff’s counsel from conducting Internet juror research in the courtroom during voir dire.  Id. at *9-10.  Carino found an abuse of discretion.

[T]he trial judge cited no authority for his requirement that trial counsel must notify an adversary and the court in advance of using internet access during jury selection. . . .  [W]e are constrained in this case to conclude that the judge acted unreasonably. . . .  There was no suggestion that counsel’s use of the computer was in any way disruptive.  That he had the foresight to bring his laptop computer to court, and [opposing] counsel did not, simply cannot serve as a basis for judicial intervention in the name of “fairness” or maintaining “a level playing field.”  The “playing field” was, in fact, already “level” because internet access was open to both counsel, even if only one of them chose to utilize it.

Id. at *26-27.  The improper restriction on Internet juror research, however, was not prejudicial:

[Plaintiff] has not pointed to a single juror who was unqualified or as to whom he claims he would have exercised a peremptory challenge, even though he has subsequently had the opportunity to perform an internet search concerning each juror.  Indeed, inasmuch as jury selection took two days, [plaintiff’s] counsel could have researched the prospective juror lists overnight or during breaks.

Id. at *27.

In an unpublished (and apparently uncitable) opinion, Soule v. State, 2019 Md. App. Lexis 59 (Md. Spec. App. 2019), addressed the trial court’s denial of a request for permission to do the same thing at issue in Carino – conduct social media research on prospective jurors in open court during voir dire. Unlike Carino, Soule found no abuse of discretion:

[T]he [trial] court “determined that it is not appropriate to allow . . . the [d]efense to start looking on social media and to make that part of the voir dire process.”  The court held that doing so would be akin to “allowing either side to . . . [rely] on facts that [are] not [a] part of the record.”  The court further held that there was “no way of knowing the accuracy of that which is posted on social media and other sites.”  Ultimately, ruling that openly conducting internet research during voir dire “could impede [potential jurors] from answering questions forthrightly,” if they perceived counsel engaged in the search.

Id. at *36-37.  Cf. United States v. Parse, 789 F.3d 83, 115-16 (2d Cir. 2015) (discussing, at length, a Westlaw “people search” not involving social media concerning a juror without suggesting any impropriety; focus of opinion was waiver due to suspicious timing of counsel’s use of the information);

At the trial court level, the most notable decision is Oracle America, Inc. v. Google, Inc., 172 F. Supp.3d 1100, 1107 (N.D. Cal. 2016), which evinced a decidedly negative towards attorneys conducting online investigations of social media (and other) information about prospective jurors.  Oracle was “clash of the titans” litigation, and both sides were interested in exploring every advantage that money could buy, including insights into the views of the jury that would decide the case.  Thus, both sides wanted extra time to conduct such research after receiving the venire’s questionnaires – although neither side said so directly.  Id. at 1101.  The court “eventually realized that counsel wanted the names and residences . . . so that, during the delay, their teams could scrub . . . Internet sites to extract personal data on the venire.”  Id.  Instead, the court questioned “whether Internet investigation by counsel about the venire should be allowed at all.”  Id.  The answer was “no.”  “[T]here are good reasons to restrict, if not forbid, such searches by counsel, their jury consultants, investigators, and clients.”  Id. at 1102.  Those were:

• If jurors “learned,” which they probably would, “of counsel’s own searches directed at them, [the] jurors would stray from the Court’s admonition to refrain from conducting Internet searches” themselves.  “[T]he apparent unfairness in allowing the lawyers to do to the venire what the venire cannot do to the lawyers will likely have a corrosive effect on fidelity to the no-research admonition.”  Id.
• Allowing counsel to become privy to large amounts of online information about individual jurors “will facilitate improper personal appeals to particular jurors via jury arguments and witness examinations patterned after preferences of jurors found through such Internet searches.  Id. at 1103.
• The court sought “to protect the privacy of the venire.”  “It is a weak answer that venire persons, . . . have chosen to expose their profiles to scrutiny, . . . privacy settings and . . . default settings [are] more a matter of blind faith than conscious choice.”  Id.

However, an outright ban on internet research on juror social media was infeasible because “the lawyers would then be precluded from learning information readily available to the press and every member of the public in the gallery.”  Id.  Instead, Oracle required full disclosure by counsel to the jury of what they would be doing in terms of Internet research.  Id. at 1103-04.  Also, “until the trial is over, each side will be permitted to view online whatever it told the venire it would review — but nothing more.”  Id. at 1104.  “[P]ersonal appeals” based on juror-specific information were prohibited.  Id.

Finally, Oracle includes a detailed discussion of the privacy settings of several major social media sites, id. at 1105-06, included a helpful (if now outdated) compilation of ethics opinions, id. at 1107, and complained about there being “precious few decisions addressing . . . whether counsel should be allowed to conduct Internet and social media research about prospective and empaneled jurors.”  Id. at 1106-07.

Outside of a couple of Arizona Superior Court judges, see, e.g., Johanson v. Casavelli, 2023 Ariz. Super. Lexis 854, at *6 (Aziz. Super. July 28, 2023) (and several other identical opinions), we haven’t seen any judicial groundswell of support for imposing the kinds of limits on Internet research about prospective jurors that are described in Oracle.

The opposing viewpoint is provided by United States v. Stone, 613 F. Supp. 3d 1 (D.D.C. 2020).  In Stone, a belated motion to strike based information gathered from juror social media was denied because” in today’s world,” counsel are expected to conduct Internet searches of prospective jurors’ social media.  Id. at 42. 

[T]he problem is not that the material could not be discovered; it was not discovered.  And it was not discovered because no one was looking for it. . . .  All they had to do was sit and type her name into an internet search engine on a laptop − a rudimentary practice that has been an inexpensive and popular arrow in the trial practitioner’s quiver for quite some time.

Lawyers representing clients in this court cannot possibly complain that they lacked access to the internet; an attorney is not permitted to enter an appearance on this court’s docket without it.  There is public wireless internet available throughout the courthouse. . . .

So the defense was free to avail itself of these publicly available sources. The fact that when it decided to look, it found the posts, identified the ones of interest, and put them together in a memorandum for the court within two days suggests that this was not a task involving unusual effort.

Id. at 42-44 (footnote omitted).  While we omitted the footnote, readers interested in this topic should not – it contains a lengthy discussion relevant (as of 2020) ethics decisions.

Other somewhat relevant trial court decisions include Reyes v. Tanaka, 457 F. Supp.3d 863, 867-69 (D. Haw. 2020) (attorney that blundered into contact with prospective juror (and attempted to deny it) while conducting Internet research escaped serious sanctions, but was prohibited from using any device to conduct such research while in the courtroom during trial); Newman v. Vagnini, 2017 U.S. Dist. Lexis 50588, at *4-5 (E.D. Wis. April 3, 2017) (post-verdict research into juror social media was proper and did not violate non-contact rules); United States v. Kilpatrick, 2012 U.S. Dist. Lexis 110165, at *8-9 (E.D. Mich. Aug. 7, 2012) (allowing anonymous jury in organized crime case; finding “no legal authority supporting a right to investigate jurors outside the courtroom” during trial); Burden v. CSX Transportation, Inc., 2011 U.S. Dist. Lexis 94809, at *25 (S.D. Ill. Aug. 24, 2011) (juror issues discovered by post-verdict Internet research into “public” materials were waived; Internet evidence “might have been known or discovered through the exercise of reasonable diligence” before or during trial).

Finally, because precedent is spotty, here are recent, relevant law review article citations:  Ressler, “Juror Privacy Via Anonymity,” 93 Fordham L. Rev. 611 (2024); Comment, “Internet Frisking Jurors During Voir Dire:  The Case for Imposing Judicial Limitations,” 18 Liberty U.L. Rev. 705 (2024); Note, “Googling, Profiling, & Drafting a ‘Fantasy Team’ of Jurors:  Contextualizing Online Investigations into Jurors & Venirepersons Within Centuries of Analog Litigation Practices,” 108 Cornell L. Rev. 1517 (2023); Hart, “Researching the Jury’s Internet & Social Media Presence:  The Ethical & Privacy Implications,” 41 N. Ill. U. L. Rev. 230 (2020).  There are older law review articles as well, but they all appear to be cited in these more recent papers.