Online social media profiles have become a seamless extension of our real-world personalities. But with broader access to sharing your life and personality via the Internet come implications, including with the criminal justice system.
“To the extent that prospective jurors choose to make information concerning themselves available to the public at large in social media, it would certainly be appropriate to use that information in the jury selection process,” District Attorney Lee Darragh said.
And this spring, the American Bar Association made it formally known it’s within ethical boundaries for lawyers to search a juror’s or potential juror’s public Internet presence, including posts made by the juror before or during a trial.
“I think it is useful,” said Brad Morris, chief public defender for the Northeastern Judicial Circuit.
After all, in everyday life people check on others as a passing whim, while dredging up information for jury selection serves a different purpose.
“It is the time during jury selection that the attorneys try to ascertain, through questions, if jurors have any preconceived biases or prejudgments,” said Gainesville attorney John Breakfield. “It is crucial for both sides that the jurors selected make a decision based on legally presented evidence in court, not outside influences.”
Voir dire, the process of evaluating potential jurors, is French for “to speak the truth,” he said. The practice is sensible for a truth-seeking process that has always beckoned lawyers to parse any other publicly available information.
“Facebook, Twitter and other social media are the public record of modern times, unless certain privacy settings are in place,” Breakfield said.
And depending on settings, certain facts might be unearthed that would otherwise never see the light: Political views, associations, perhaps even a clearly stated viewpoint on a case that has been concealed or overlooked.
For Gainesville attorney Jeffery Talley, that information is especially crucial on cases that been covered in the news.
“When you’re picking a jury, you want to get people on your jury that don’t have biases, and I think that with social media accounts, typically there are a lot expressions of how you feel about that case,” he said.
Talley has one such case right now, in fact. Three day care workers in Clermont arrested in connection with alleged neglect of a burned toddler drew fiery commentary online, mostly negative. The owner, an employee and site director all were charged.
“I have one of the cases of the Clermont day care center staff,” he said. “I know for a fact that there has been a lot of social media stuff, and we would definitely delve into that.”
Privacy arguments are never far away from the dialogue, which Breakfield noted.
“On the other hand, I can see the argument that exploring social media could be too invasive regardless of privacy settings,” he said.
Yet Talley said people are seemingly less concerned about what they put out there. Publicly posting views and opinions is a blasé pastime in the online era.
“With social media, I think overall people are desensitized to a certain degree,” he said. “People put forward views that face-to-face they might not be as forthcoming with.”
And digging up those truths is especially important if people were to deliberatively misrepresent themselves in person.
“It’s pretty funny, you get some people, and I’ve seen quite a few of those, that they’re willing to try to do anything to get on the jury,” Talley said. “Some people want to be on it. They perceive it as a big case, some of these high-publicity cases. They want to get the answer ‘right.’
“The bottom line is people are put in a situation where they’ll tell you their true views and feelings, as I think people do on these social media networks.”
Facebook is a record so ubiquitous, that be it a friend or police investigators, most expect salient social insight in seconds. Online directories of the community also make it easy to draw potential connections between jurors and defendants.
“What if a criminal defendant was good friends with a juror? Exploring Facebook may inform the prosecutor of a juror’s personal and potentially biased connection,” Breakfield said.
But he said there are obvious ethical limits.
“Actually contacting a juror on social media or using false pretenses to get around privacy settings would land the lawyer in serious trouble with the trial judge and the state Bar,” he said.
Likewise, all that information might tempt a juror during trial. But it’s strictly off-limits, as the trial judge routinely reminds them, Breakfield said.
“If a juror were to research the case on Facebook or any other means, that juror would be in hot water with the judge for researching the case,” he said. “A juror must base their decision on the evidence presented in court not through press coverage, rumor or online research.”
At the end of the day, guidelines and common practices aside, the judge runs the courtroom, Talley said, and can limit what goes on during voir dire, within reason. And like all things in life, the information abundance must be weighed against the scarcity of time.
“By the time the jury pool is reduced down to those participating in voir dire, the proceedings are going so fast that it is probably not practical to search Facebook with a waiting judge and a courtroom full of potential jurors,” Breakfield said.