This week's Daily Record column is entitled "Facebook, juries and mistrials, oh my!"
A pdf of the article can be found here and my past Daily Record articles can be accessed here.
Facebook, juries and mistrials, oh my!
Earlier this month, local criminal defense attorney and prolific author, Gary Muldoon, brought to my attention a very interesting Supreme Court of Kentucky decision that was issued in September, Sluss v. Commonwealth, 2012 WL 4243650.
This case addressed allegations of juror misconduct in a criminal case resulting from Facebook “friendships” between the mother of the victim and two jurors. Despite requests from the judge during voir dire regarding social media and existing online relationships, the jurors denied any connection to parties and witnesses to the case and the victim’s mother denied that she had a Facebook account.
Nevertheless, it turned out that there was a possibility that two jurors and the victim’s mother were likely “friends” on Facebook. Accordingly, the defense appealed, alleging, in part, that the trial court erred in denying the defendant’s motion for a new trial on that basis.
In reaching its decision, the court considered an assortment of interesting issues, including the nature of Facebook “friendships,” the effect of Facebook connections upon a pending trial, and the ethical obligations of lawyers when mining social media for evidence. In other words, this case covered it all: 21st century relationships, the social media/litigation clash and legal ethics.
First, the court pontificated on the very essence of Facebook connections, explaining that “friendships” “on Facebook and other similar social networking websites do not necessarily carry the same weight as true friendships or relationships in the community … The degree of relationship between Facebook ‘friends’ varies greatly, from passing acquaintanceships and distant relatives to close friends and family. The mere status of being a ‘friend’ on Facebook does not reflect this nuance and fails to reveal where in the spectrum of acquaintanceship the relationship actually falls. Facebook allows only one binary choice between two individuals where they either are ‘friends’ or are not ‘friends,’ with no status in between.”
Then, the court moved on to assess the effect of the alleged social media connections between the jurors and the victim’s mother and concluded that because it was impossible to determine the relationships from the record, a hearing on the issue was warranted to assess “whether (the jurors’) answers during voir dire were false and whether they should have been struck for cause. The court must consider whether (the jurors) had … Facebook accounts at the time of voir dire, when (they) became ‘Facebook friends’ with (the victim’s mother), whether the (people) listed in (the victim’s mother’s) friends list (were the jurors) who rendered the verdict, and the extent and nature of the (jurors’) relationship with (her).”
Next, the court considered the ethical issues presented when lawyers search social media for evidence to support their client’s case. The court adopted the standards established in the New York County Lawyers’ Association Committee on Professional Ethics, Formal Opinion No. 743, which I discussed in January 2012.
Accordingly, the court held that lawyers may research prospective jurors by viewing publicly available information on social media sites, so long as doing so does not cause the juror to become aware of the monitoring. The court then explained that ethics guidelines prohibit lawyers or their agents from engaging in deceit in order to “friend” or otherwise connect with a juror in order to view social media data which is not publicly available. This conclusion makes sense, since to hold otherwise would encourage lawyers to engage in deceit and misrepresentation when mining social media for evidence, which is a clear violation of ethical standards.
All in all, this was a really interesting and informative decision — one that offers continuing evidence that social media is a phenomenon that simply can’t be ignored. Simply put, lawyers who seek to provide zealous and effective representation on behalf of their clients must have a thorough understanding of social media and its effect on litigation. Anything less arguably amounts to an ethical violation at best and malpractice at worst.
Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at firstname.lastname@example.org.