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ABA: Lawyers can probe jurors' social media sites

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The American Bar Association (ABA) has issued an opinion saying it's ethical for lawyers to scan the social media sites of potential jurors and those picked to serve, even after a case has begun.

But Richard Gabriel, president of Decision Analysis, Inc., a national trial consulting firm, and a leader in the field of jury research, jury selection and litigation communication, tells CBS News' Crimesider most attorneys have been doing it all along.

"I think it formalizes what many attorneys have already been doing," Gabriel said. "It answers questions a lot of attorneys have been asking about what the parameters are when it comes to researching jurors ahead of time."

The opinion, which was issued by the ABA's ethics committee following a review that spanned about two years, says that while lawyers may review a juror's public presence on the Internet, they may not communicate with the juror or request access to their private information online. In other words, they can't "friend" them on Facebook or "follow" them on Twitter.

The opinion also says that judges should consider advising jurors during the orientation process that their backgrounds will be of interest to the lawyers working the case and that the lawyers may view their social media accounts as part of that process.

Gabriel, who has assisted counsel in the Casey Anthony, OJ Simpson and Enron trials, as well as many other high profile civil and criminal matters, says that while there are pros and cons when it comes to lawyers assessing jurors' social media profiles, the positives outweigh the negatives in terms of guaranteeing a fair trial.

"Extra information is obviously a good advantage when you don't have much to go on in the jury selection process," Gabriel said, pointing out that posts made on a prospective juror's social media account can help a lawyer detect bias or predisposition that could influence that individual's ability to be impartial.

Gabriel also points out that analysis of jurors' social media presence can come in handy during trial, too.

"We always say you want to try your case to the audience you have. You want to keep in mind who your jurors are. As you're looking at the background of jurors, if they have a particular interest, then you can craft analogies and metaphors or examples to help that juror more clearly understand what your case is," Gabriel said.

But, Gabriel says, there are also disadvantages when it comes to social media. It's sometimes difficult to determine whether you're looking at the right person's social media account since so many people have the same names, and it's easy to be misled by information, he says.

"If somebody has a picture on their Facebook page where they are goofing around or they look a particular way, you may make an assumption when you have no context for what the picture is. You have go be careful about how you evaluate what that information means regarding how the juror will view the case," Gabriel told Crimesider.

Jim Cohen, a law professor at Fordham University, agrees that there are problems when it comes to attorneys viewing jurors' social media profiles.

"It opens up a real hornet's nest," Cohen told Crimesider.

"I think it's a bad idea. This stuff is still in its infancy," he said, adding that people, including jurors, post "the most unbelievable things" on the Internet without taking into account how a stranger will interpret it.

But Cohen also points out that just because the ABA has issued an opinion on the matter, doesn't mean states can't enforce their own rules on the issue.

According to the Associated Press, at least two state bar organizations have addressed online searches of potential jurors. The Missouri Supreme Court requires lawyers to research potential jurors' litigation history on a website that tracks lawsuits in the state. The Oregon State Bar published an opinion last year that's in line with the ABA guidelines, saying lawyers can access publicly available social media information, but can't actively "follow" or "friend" potential jurors.

Individual judges can also impose their own restrictions when it comes to lawyers probing jurors' Internet presence, too.

In general, judges universally instruct jurors to refrain from discussing trials on social media and to stay away from any media coverage so as not to influence their opinions on the case.

Both Gabriel and Cohen believe it's important that jurors follow these instructions, although Cohen contends that at least half don't pay attention to them.

"Curiosity is such that a person goes home and wants to see if the case they're on is in the newspaper. So, they read all about it and come back to court the next day with conceptions about what the case is about and views of what the case is about."

"I think it's a substantial impediment to fairness in our system," Cohen said.

Jurors' online postings have disrupted many legal proceedings over the years, causing mistrials and special hearings over the effects of Facebook posts, tweets and blog writings about their trial experience.

That's one of the reasons why it's useful for lawyers to be able to monitor jurors' Internet presence, Gabriel argues.

Researching jurors ahead of time is important, but then having the ongoing ability to make sure jurors are following the rules and not talking about the case online is even more crucial because it could reveal grounds for a mistrial, he says.

  • Stephanie Slifer

    Stephanie Slifer covers crime and justice for CBSNews.com.

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