I have written about the legal issues surrounding social networking sites (click here and here to read those posts). I even did an ALI-ABA teleseminar with Eric Goldman yesterday discussing, among other things, how the Communications Decency Act protects social networking sites against suit based on third party content published on the sites. But Julie Kay’s National Law Journal article yesterday — click here to read it — provided a new angle on the power of social networking sites in the courtroom.
It is no surprise that lawyers, either alone or assisted by jury consultants, research juror backgrounds, and use their research during voir dire and to inform their trial presentations, in particular opening and closing arguments. Of course, internet research has been a cornerstone of those efforts for years. But social networking sites have vastly increased the amount of information available about the average person. Instead of learning someone’s Turkey Trot 5k time and one or two newspaper quotes, you now may be able to see their entire resume on LinkedIn, read about major life events on FaceBook, or even read their personal, daily thoughts on a blog. Kay reports that the information is a valuable fact checking tool, acting as a backstop to information provided in a jury questionnaire.
Additionally, blogs can tell you a lot about a juror, that the juror might not be inclined to disclose in open court or on a questionnaire. To illustrate this point, Kay quotes Anne Reed of Reinhart Boerner Van Deuren — who writes Deliberations, one of my favorite legal blogs. Reed tells the story of "Erin" a relatively prominent Florida blogger who blogged that she was a juror several days after posting that: "I totally understand how innocent people that go to prison turn into hardened criminals . . . ." Reed explains that the lawyers might not have struck Erin for her blogging, but that it was critical information to have in the decisionmaking process:
"You’d hate to leave Erin on your jury without having seen her writing," said Reed. "A juror’s blog tells you things about the jurors that she probably won’t tell you herself."
Kay also quotes Holland & Knight litigator Dan Small who raises an important and often overlooked note of caution. Small is concerned that invading jurors’ privacy via internet research could make jurors very uncomfortable and is a substantial invasion for people performing their civic duty:
"You are taking people who are doing their civic duty and didn’t sign up to have their whole life probed," Small said. "It scares people. They wonder: ‘Are they going to hack into our e-mails next?’ The Internet in so many areas creates an extraordinary conflict between the desire for information and the desire for privacy."
Of course, there is a real question as to whether anything posted on the internet, without password protection or some other privacy protections, can be considered private in anyway. But there is little doubt that knowing their backgrounds were researched and their FaceBook pages were read could make jurors uncomfortable and learning that their backgrounds have been probed could turn jurors against the lawyers or their clients. So, at a minimum, the information needs to be used carefully and discreetly.