By Nicole Black
The Daily Record Newswire
Earlier this year, the Court of Appeals of Georgia was faced with determining the proper procedure to follow after it is disclosed that a sitting juror is connected with the defendant on Facebook.
In this case, Smith v. State, 335 Ga.App. 497 (2016), jurors were questioned by the judge during voir dire regarding any existing relationships with the defendant, both online and off. The juror in question, Juror #4, responded that she rarely used Facebook and did not believe she was friends with the defendant.
The trial then proceeded and later, in the midst of jury deliberations, the trial court judge received a note indicating that the jury was deadlocked. The judge sent the jury back to continue deliberating, at which time the prosecution shared that it had discovered that Juror #4 and the defendant were friends on Facebook. Accordingly the prosecution requested that Juror #4 be replaced, a request the court granted. After the juror was replaced, the jury returned a guilty verdict.
On appeal, the defendant asserted that the trial court erred in replacing the juror given that there was no evidence that the juror actually knew the defendant or would be biased in his favor. The Georgia Court of Appeals disagreed, holding that the trial court's actions were proper:
"The trial court did not abuse its discretion in replacing Juror 4. Regardless of Juror 4's reasons for failing to disclose her connection to Smith, the depth of her relationship, and whether her failure to disclose constituted misconduct, Juror 4 was connected to Smith in some fashion and her veracity on the issue was in question."
I can find no fault with the rationale behind this decision, but do find the prosecution's timing in this case to be suspicious. The opinion is unclear as to when the prosecution discovered the Facebook relationship, but the fact that it was disclosed only after the jury advised that it was deadlocked leads me to believe that the prosecution likely shared the information at that point in time in order to gain a tactical advantage.
While this course of action may be acceptable in Georgia, New York attorneys would be wise to refrain from similar conduct in light of New York County Lawyers Association Formal Opinion No. 743 (1/12), which I wrote about in this column previously. In that opinion, the ethics committee concluded that lawyers must immediately disclose jury misconduct or violations of the court's instructions immediately upon learning of it:
"Any lawyer who learns of juror misconduct, such as substantial violations of the court's instructions, is ethically bound to report such misconduct to the court under RPC 3.5.Of course, the lawyer has no ethical duty to routinely monitor the web posting or Twitter musings of jurors, but merely to promptly notify the court of any impropriety of which the lawyer becomes aware.Further, the lawyer who learns of improper juror deliberations may not use this information to benefit the lawyer's client in settlement negotiations, or even to inform the lawyer's settlement negotiations.
"The lawyer may not research a juror's social networking site, ascertain the status of improper juror deliberations and then accept a settlement offer based on that information, prior to notifying the court. Rather, the lawyer must 'promptly' notify the court of the impropriety-i.e., before taking any further significant action on the case."
So let this case serve as a reminder to New York litigators: social media can provide valuable information for litigation purposes, but make sure that you fully understand your ethical obligations prior to researching social media during trials. The failure to do so can have serious ramifications, both for your client's case and your license to practice law.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book "Cloud Computing for Lawyers," coauthors the ABA book "Social Media for Lawyers: the Next Frontier," and co-authors "Criminal Law in New York," a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@ mycase.com.
Published: Thu, Jul 14, 2016
