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The Voir Dire Dilemma: Social Media and Attorney Snooping

The members of a criminal defendant’s jury are extremely important, as well as the voir dire process to select these members. Because jury members are only human, how they think, how they feel, and their experiences in life are all relevant to how they will decide a criminal verdict. Voir dire is the process by which attorneys interview and decide who will be impaneled on a jury. The purpose is to root out any members of a jury who may know the defendant, victim, or other party of the case, who may have an interest or bias in the outcome of the case, or who will be unable to consider both sides of the issue because they have had an experience that closely resembles the case at large. It is difficult to think that someone who has been a victim of an armed robbery would be able to be impartial as a juror in the case where the defendant is being accused of armed robbery. In those cases, it is wise to strike the potential member of jury from the process so that they cannot be involved.

Juror’s Background Can Influence a Verdict

To get to this information, however, there is only a limited amount of time to ask questions and discover how this juror they vote. Sometimes, lawyers, especially defense attorneys, will want to learn more (informally) about the juror so as to make an assumption about how this person will decide the fate of their client. For example, the lawyers may not ask the right questions of a juror and may only later find out that, for example, the potential juror’s sister was a victim of domestic violence, and therefore, will be more likely to convict a criminal defendant who is being charged with domestic violence or abuse. Or for example, the attorney may discover that the potential juror has five daughters and, therefore, may be extremely protective of the female victim around his daughters’ ages who was assaulted by the criminal defendant. All of this informal information is highly probative of how a juror may vote, which is extremely valuable if you are an attorney advocating on behalf of your criminal defendant.

Lawyer Snooping and the Line: Where is It Drawn?

Many of these lawyers unofficially snoop around the potential jurors to get a better idea of the type of person that he or she is and how he or she presents him/herself on social media. The extent in which the lawyers may snoop was recently decided by the American Bar Association’s committee on ethics and responsibility.

According to the ABA’s committee, lawyers are limited to what is publically available on the juror’s social media. This provides that lawyers may read and view the public Twitter account of a juror, but may not friend or request access to the juror’s social media information. Judges are now advising jurors that lawyers may view their public feeds on social media, but that the lawyers may not interfere and request access for more information as this would be akin to driving to the juror’s home and requesting to poke around the insides of the home.

Other Situations Regarding Social Media Snooping

The Committee also discussed the situation where the social media website alerts the juror that his/her public information has been viewed by the attorney; according to the Committee, this is the social media’s message and communication to the juror, and not communication sent from an attorney. According to the reasoning, this would be akin to a lawyer driving past the juror’s home and the neighbor letting the juror know that the lawyer passed by.

The Lawyer’s Duty To Report a Juror’s Violation Resulting from Social Media

There is one interesting exception that creates some issues. According to the Model Rules, if, as a result of viewing the juror’s public feed and comments, the lawyer sees the information that is a violation of court instructions, but is not criminal or fraudulent, the attorney may still be required to report the violation to the court. This would include a situation where a juror who is impaneled on a closed session photographs or videotapes and then posts the images to his/her public social media feed.

Experienced Criminal Defense Attorney in Fort Lauderdale

If you or a loved one has been arrested for a criminal offense, It is important to speak with an experienced criminal defense attorney like Kevin J. Kulik. Contact Kevin J. Kulik today for a free and confidential consultation in the Fort Lauderdale area.

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