For the Defense - Vol. 4, Issue 3 - 34

Social Media -
Technical Competence and Jury Trials
Catherine M. Recker and Mira Baylson

H

ave you ever Googled yourself? Do so and
you will see that even a cursory search
reveals a tremendous amount of information.
Most of us would redact, or at least edit, some of
the information that shows up in a Google search
of oneself. Lawyers generally have a heightened
sensitivity to their online presence; clients, not
necessarily. To adequately represent a defendant
charged in a criminal matter, lawyers must alert
themselves to their client's online presence, discuss
the potential dangers of social media with their
clients and advise the client about the potential use
of any statements made on such accounts against
them in court.1 This requires criminal defense
attorneys to have at least a working knowledge
of social media and the technology used to enable
it.2 In other words, technological competency,
including a working knowledge of the Internet
and social media, permeates all areas of legal
practice in this day and age, particularly for criminal
practitioners.
One of the most ethically fraught areas of
the practice of law in this social media era is jury
selection. While the frequency of jury trials, both
civil and criminal, has plummeted in the past
decade (and longer), lawyers must still understand
and implement relevant ethical practices when
selecting a jury or indeed litigating a case in front
of a jury. With the proliferation of the Internet
and social media (particularly its use via cellular
telephones), the information available to jurors and

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Vol. 4, Issue 3

their ability to communicate with the outside world
while sequestered has changed immeasurably. On the
other hand, the information available about jurors,
both prospectively and during a case, is of significant
value.
As with all new sources of information, there are
challenges and pitfalls attendant in its use. This article
attempts to summarize both the ethical requirements
for attorneys selecting a jury vis-à-vis the Internet and
social media as well as the hazards accompanying
those requirements. This is a constantly changing
area of the law and while certain courts have
adopted standards under which it expects attorneys
to practice, these standards are not uniform and can
change very rapidly.

When We Say Social Media, What Do
We Mean?
Information aggregator services, such as LexisNexis
or even publicly available state public records,
reveal information about a person that is quite
comprehensive: it can include civil judgments such
as bankruptcy, evictions, liens as well as criminal
convictions. Social media accounts, ranging from
Facebook and Snapchat to Twitter provide platforms
for individuals to speak publicly about any range of
topics. Between publicly available research options
and social media accounts, it is possible to construct a
nuanced and comprehensive portrait of an individual,
from their financial situation to their political
leanings.
For the Defense - Vol. 4, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 3
