Trial teams around the country scour the internet for “jury nuggets.” And many — dare I say most — courts have accepted this practice. Our last blog post addressed ethical and professional standards that (should) guide any internet sleuthing, and Ben Hancock with The Recorder (ALM) recently published a fantastic article on some of the jurisdictional trends.
But there’s an important issue hanging in the air that has received very little attention: What on earth are we supposed to do if (or when) we discover something untoward about a potential juror or actual juror? After all, the information gleaned during an internet search on John Q. Public includes not only the information that can make it into the jury box, but it also includes the information that comes out of the jury box.
Under the ABA’s Model Rules of Professional Conduct, a lawyer has a duty to report criminal or fraudulent conduct, but despite past attempts to broaden the rule, it says nothing about reporting obvious bias, jury misconduct, or even known conflicts. Model Rule 3.3(b) simply states:
A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take remedial measures, including, if necessary, disclosure to the tribunal.
So what might you discover that would not technically be considered to be criminal or fraudulent, but might still be an issue worthy of disclosure?
A Juror Ignores the Judge’s Instructions
The most obvious, and the most common, infraction is determining that a potential or actual juror has ignored the Judge’s instructions related to social media, or has shared case-related information or opinions online. This typically involves a juror who shares thoughts about a trial, hints about a big verdict about to be rendered, or searches the internet to seek information that is not being addressed (or adequately addressed) in the courtroom. Is the conduct criminal or fraudulent? Not likely. But should you report it to the court? We believe the answer is yes.
Florida Circuit Judge Krista Marx just granted a new criminal trial last month for a defendant who was convicted of first-degree murder. Why? Because one of the jurors looked up two words on a dictionary app on his smartphone during deliberations, and posted Facebook messages after the trial encouraging another juror to lie. (By the way, this particular juror was found in contempt of court and imprisoned for 8 days.)
A Juror Exhibits Obvious Bias
Jury selection is challenging for a number of reasons, but the most difficult aspect of voir dire is that, by its very nature, it relies 100% on juror disclosure and honesty. Unfortunately, jurors pick and choose what they want to share. Most of the time any failure to disclose is inconsequential; but sometimes, it matters.
Let’s say you represent a Plaintiff alleging that Apple has faulty touchscreen technology, and you discover the night before jury selection that someone in the venire has multiple Facebook posts (public, of course) indicating that he’s had nothing but trouble with his iSomething touchscreen and has posted multiple rants against Apple. As Plaintiff, this juror could be a gem, so the natural inclination is to remain silent. But is there a duty to disclose this information to the Court and opposing counsel? Not according to Model Rule 3.3(b).
But keep this in mind: Back in 2012, a NY federal judge refused to grant a tax fraud defendant a new trial, in part because his attorneys discovered during trial that an empaneled juror had not been forthright during voir dire, and seemed to harbor less-than-neutral feelings about critical issues in the case. The judge was none too happy that counsel withheld the information from the Court:
Any reluctance to disclose this information — even if it might jeopardize a client’s position — cannot be squared with the duty of candor owed to the tribunal.
A Juror Has Ties to the Parties in the Lawsuit
Another common issue is discovering that a potential (or actual) juror has some sort of connection to the plaintiff, defendant, witnesses, or attorneys. Sometimes, trial teams simply don’t have the time or bandwidth to thoroughly scour a juror’s online footprint prior to jury selection. But once the panel has been sworn in, many delegate the sleuthing task to a peer. Sometimes, one discovers that a particular juror has ties to a party and that such ties may rise to the level of posing a conflict or establishing bias.
If the potential relationship is learned prior to voir dire, by all means ask detailed questions and follow-up. If jurors are not asked clear questions, they may not know to disclose. “Do you know John Doe?” is a very different question than, “Do you have any connection whatsoever to John Doe, whether personal, business, or on social media?”
In McGaha v. Commonwealth, the Kentucky Court of Appeals was asked to determine whether trial counsel failed to properly question a prospective juror about her relationship to the victim’s family. Trial counsel did, in fact, ask questions about potential conflicts, but the “quality” of follow-up was at issue. The Court had this to say:
While the parties have the right to assume that the answers given by potential jurors are complete, candid and truthful, we cannot expect potential jurors to appreciate the nuances of potentially disqualifying relationships, and volunteer answers to the questions that counsel failed to ask. … If [the prospective juror’s] casual relationship with some members of the… family was cause for concern for any party, it was incumbent upon that party, not the jury, to delve more deeply into the matter. (emphasis added)
The $60,000 Question
This past January, Pew Research reported that a whopping 69% of the American public uses social media. That’s 70% of your venire panel. Or at least 8 jurors on a 12-person jury. Odds are that you will learn something about your jurors that is not discovered during voir dire. The $60,000 Question is, “Is it relevant?” and “Should I disclose”?
Unless your state bar or local bar associations have issued specific rules or guidelines that differ from the ABA Model Rule 3.3(b), it seems that you’re on your own.
If in doubt? Better safe than sorry. Disclose.