ABA Approves Researching Jurors' Public Presence on the Internet

7 Pages Posted: 20 Apr 2016 Last revised: 21 Apr 2016

See all articles by Peter A. Joy

Peter A. Joy

Washington University in St. Louis - School of Law

Kevin C. McMunigal

Case Western Reserve University School of Law

Date Written: April 2016

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.

Keywords: ethics, professional responsibility, internet, juror, jury, ethics opinions, ex parte communication with juror

JEL Classification: K14, K19, K41, K42

Suggested Citation

Joy, Peter A. and McMunigal, Kevin C., ABA Approves Researching Jurors' Public Presence on the Internet (April 2016). Criminal Justice, Vol. 29, No. 3 (2014); Washington University in St. Louis Legal Studies Research Paper No. 16-04-01. Available at SSRN: https://ssrn.com/abstract=2767164

Peter A. Joy (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
313-935-6445 (Phone)

Kevin C. McMunigal

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
2163683613 (Phone)
2163682086 (Fax)

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