Information from social media can assist lawyers in tracking down individuals to be served. Evidence can be collected through social media, and it is also important to remember that the rules of evidence still apply.²

The recent case of Allied Concrete Co. v. Lester demonstrates the importance of preserving social media evidence and the perils of advising clients involved in litigation to remove damaging posts from their social media pages.³ Following a car accident involving an Allied Concrete truck, Lester sued Allied Concrete for compensatory damages for both his personal injuries and the wrongful death of his wife.⁴ Allied Concrete sought discovery of Lester’s Facebook page, which included photos of Lester holding a beer can while wearing a T-shirt printed with “I ♥ hot moms.”⁵Lester’s attorney, through his paralegal, promptly instructed Lester to “clean up” his Facebook page because “[we don’t] want blow ups of other pics at trial.” Lester then deleted a number of photos from his page. Although the deleted photos were eventually produced and Lester ultimately prevailed at trial, the court ordered sanctions in the amount of $180,000 for Lester and $542,000 for his attorney.⁶ Lester’s attorney currently faces a disciplinary hearing related to his role in the cover-up.

Casey Anthony’s case is a great example to demonstrate how social media platforms like Facebook and Twitter could revolutionize the way lawyers defend their clients, especially in highly-publicized cases.

Amy Singer, jury consultant and psychologist for Casey Anthony's attorneys, and her revolving team scanned thousands of tweets, Facebook posts and messages from bloggers every day of the trial. They read through tweets and other local media sites, gauging opinions about defense and state attorneys, witness testimonies, evidence and especially the focal point of the trial—Casey Anthony, and used them to help the defense craft their trial strategy.⁷

When public opinion on Twitter or Facebook changed dramatically and started to attack George Anthony about his alleged mistress, the consultant made it clear to the defense that they needed to tweak their strategy. Casey Anthony's defense attorney, Jose Baez, who initially had his doubts about the social media tactic, decided that he would adjust his trial strategy and managed to find a way to blame the father.

Another reason for Casey Anthony’s acquittal was lack of forensic evidence. A number of media commentators reasoned that the prosecution overcharged the case by tagging on the death penalty, concluding that people in good conscience could not sentence Anthony to death based on the circumstantial evidence presented.

Jurors online: 

Social media have been a significant problem in relation to juries. They are open to abuse in the form of improper contact between lawyers and juries. For example, in New York it is permissible to obtain public information about a juror or potential juror, but it is not permissible to communicate with the juror, including by the mere act of friending the individual.⁸ Judges routinely caution jurors about the importance of their not doing any independent research and not discussing the case with anybody, including on social media. Courts are concerned about what users might say online because it could be construed as having a bias about the case or reveal information about a trial or deliberations before they becomes public. Even postings that seem benign could lead to questions about the juror's ability to follow directions or whether he has communicated about the case elsewhere.⁹ But jurors routinely disobey the court’s directions, significantly increasing the risk of mistrials. For example, an Arkansas jury found Erickson Dimas-Martinez guilty of murder and sentenced him to the death penalty in March 2010, but two years later the conviction was thrown out, because a juror had been tweeting during the trial.¹⁰

While most judges frown upon jurors' using their smartphones while sitting in the jury box, jurors typically have full access to social media outside the courtroom. They may use Google or Wikipedia to research the meaning of certain legal terms, and the definition may not be allowed in the present trial, which could make a difference to the final ruling of the case–convicted or not convicted.

Lawyer-client privilege at stake:

Clients can jeopardize privilege and, in some cases, have been held to have waived it by tweeting, blogging, or posting information about their cases. Some lawyers have made it part of their intake process to sit with each new client and explain the importance of maintaining the lawyer-client privilege. They may also give advice about whether any past activity can be safely deleted or whether such deletions carry the risk of a spoliation allegation.¹² Lawyers are not allowed to provide specific legal advice on a social media network because a lawyer’s responsive communications may be found to have created an attorney-client relationship and legal advice also may impermissibly disclose information protected by the attorney-client privilege.¹³

Violation of confidentiality rules:

Some social media platforms invite new users to grant the program access to their contacts lists to “friend” or otherwise connect with others. In jurisdictions where the identity of your clients is confidential information, lawyers may unwittingly violate confidentiality rules if they permit a social networking application to access their contact list and potentially publish it, which could include clients, opponents, witnesses, and suppliers.

Jurisdiction problem:

Attorneys can only practice law in jurisdictions in which they are licensed, with very few exceptions.¹⁴ The borderless nature of social media, however, could lead to the risk of a lawyer being accused of holding himself out as qualified to practice in jurisdictions where he is not. Even if attorneys are licensed in every jurisdiction to which a particular communication is connected, it may be unclear which jurisdiction’s rules apply.¹⁵

Conflict of interests:

Model Rule 1.18 provides that, “a person who discusses with a lawyer the possibility of forming an attorney-client relationship with respect to a matter is a prospective client.”¹⁶ An attorney-client relationship could be inadvertently formed if a client “reasonably relies” on what they believe to be the attorney’s legal advice through social media.¹⁷ Furthermore, since there is no quick and simple way to determine the true identity of a social media user, lawyers may potentially create a lawyer-client relationship with someone they never intended to make. The interest of this new client could be in conflict with a current client.

Perils of “friending” judges:

Attorneys run the risk of engaging in improper communications though online relationships with judges. Model Rule 3.5 prohibits attorneys from contributing to a violation of the ABA’s Model Code of Judicial Conduct.¹⁸ Some jurisdictions permit lawyers to “friend” judges on social media sites, provided lawyers otherwise observe the rules of professional conduct. Other jurisdictions hold that social networking relationships between a judge and a lawyer are impermissible because they convey the impression that the attorney is in a special position to influence the judge.¹⁹

Ethical Implications of Social Media

The ethical implications of attorneys’ use of social media is a controversial and quickly changing topic.

In response to the growing need to address the ethical requirements of an attorney’s use of social media when researching a jury, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466, “Lawyer Reviewing Jurors’ Internet Presence” on April 24, 2012, focusing mostly on Model Rule 3.5 of the ABA Model Rules of Professional Conduct.²⁰ Model Rule 3.5 governs an attorney’s interaction with jurors before, during and after a trial, and it prohibits communication with jurors before and during the trial except pursuant to a court order.²¹ The ABA applied the law to social media contact and concluded that lawyers may review a juror’s or potential juror’s internet presence before and during a trial as long as they do not communicate with the juror directly.²² However, attorneys should not send “an access request to a juror’s electronic social media,” or, in other words, attorneys should not send jurors or potential jurors friend requests on Facebook or equivalent actions on other social media websites.²³ Such a request an impermissible contact, but the ABA goes on to clarify that a juror or potential juror’s awareness that an attorney has reviewed his or her Internet presence through a network setting does not violate Rule 3.5(b).²⁴ Therefore, while following a juror on Twitter is not permitted, if a juror becomes aware of an attorney’s review of information through something like Google Analytics, which is a designed to tell users who is searching for them, that attorney would probably not be in violation of Rule 3.5. The committee went on to encourage courts to discuss their expectations with attorneys and judges concerning researching jurors through social media and to consider a court order in the form of a local rule, standing order or a case management order in order to provide clarity.²⁵

Though the ABA has opened the door for attorneys to use social media to research jurors and prospective jurors, will practice take it further and require attorneys to use social media in voir dire or risk malpractice? In 2010, the Missouri Supreme Court took a step closer to such a rule when it created an affirmative duty to  “use reasonable efforts to examine the litigation history on Case.net ²⁶ of those jurors selected but not empanelled and must present to the trial court any relevant information prior to trial” in Johnson v. McCullough.²⁷ Following the case, the rule was codified in Missouri Supreme Court Rule 69.025, and it mandated that attorneys search jurors’ litigation history.²⁸ Further litigation in the state has suggested that there is a requirement of reasonable investigation into areas of possible bias through online research, which could include Facebook, Myspace, and LinkedIn.²⁹ However, no formal rule requiring such research currently exists. So far, most other states have kept in line with the ABA’s Formal Opinion 466, but the rules as well as the media are still evolving and changes can and should be expected over time.

There are, of course, disadvantages of using social media to research jurors as well.  Jim Cohen, law professor at Fordham University, cautions that it’s “a bad idea” and people post “the most unbelievable things” on the Internet without thinking about it.³⁰ Therefore, it is possible that social media accounts are not an accurate representation of the jurors’ beliefs and attitudes and do not reflect their performance on a jury. Social media also encourages trends and, perhaps in order to appear well informed to acquaintances, users tend to cling on to the next hot topic issue, often posting a variety of opinions and articles relating to it. These trends may not adequately reflect an individual's belief, but may merely be reflecting the popular viewpoint at the time. Further, not all social media users treat their accounts seriously and may often post information that is misleading about their true character. Generally, though, there is probably a lot of valuable information to gain from researching jurors’ social media accounts as long as attorneys realize that it is not a foolproof information bank and sometimes can be misleading.

While there is still some uncertainty surrounding how and when social media should be used in voir dire, many companies have stepped up to the plate to try to make the process easier and more in line with regulations. X1 Social Discovery has a product that allows a public follow feature, enabling access to all past tweets of a user and real-time access to new tweets without generating a formal follow request that would be in violation of the model rules.³¹ Jury Scout, at $295 a search, will monitor up to 50 different public social media sites and analyze whether an individual is likely to side or disagree with a particular issue.³² It takes into account an individual users’ interests, posts, and “likes” in order to reach its conclusion.³³ While this might seem overly intrusive and like an invasion of a potential jurors’ privacy, individuals who post on social media have agreed to the public nature of the service most likely through the platform’s Terms of Service. Further, common knowledge states that social media posts are available to a wide audience and that sometimes posting on social media can impact everyday life. If individuals are concerned about how their information online can be used, they should be more cautious in putting that information on the Internet in the first place.

When the ABA gave its blessing to use social media in researching jurors, it was not presenting a novel idea. Rather, it was affirming a practice that was already well established in the legal field. Going forward, the public and the legal community can expect social media to play a more active role, not only in jury selection, but in dealing with clients and trials generally.

Social Media and the Tsarnaev Trial

What can we learn from Tsarnaev’s own social media account?

“I’m a stress free kind of guy.”
――Tsarnaev’s last tweet was on April 17, 2013, 2days after the Boston Marathon Bombing

Tsarnaev's Twitter account and VK Russian’s social networking profile have drawn heavy public scrutiny. Even his less known deleted Instagram account was still discovered and analyzed by CNN.

Tsarnaev apparently maintained an active Twitter account. The tweets on the @J_tsar account cover a variety of topics, including religion and pop culture, and contain much trash talk about women. From his account the pubic is privy to his nickname, his book review, and his thoughts before and after the bombing.³⁴ From these kinds of posts, the public was able to draw an opinion about Tsarnaev before the trial even began.

(Picture is captured from Buzz Feed news report)³⁵

(Picture is captured from Tsarnaev's twitter account, visited on March 9th)

Twitter records show the impact of the exposure of his twitter account by the media. His April 17 tweet only got 41 retweets and 6 favorites, which was prior to the publication of his twitter account by the media. Now the numbers are 7.2K retweets and 2.7K favorites. He has 59.6K followers now, which grew rapidly after media exposure.

(Picture is captured from twitter account, visited on March 9th)

His second most favorited quote happened during bombing day, and ironically, his third most favorited tweet is “Most of you are conditioned by the media”, with 4.4k retweets and 1.9K favorites.

(Picture is captured from CNN news report on April 26, 2013)³⁶

His Instagram account, "jmaister1", was deleted shortly before the bombing. The media assumed the account could be significant. Instagram makes clear in its terms of service that it will turn its records over to law enforcement officials when it receives a valid subpoena or search warrant.

What’s people’s reaction about his tweet on social media?

1. Shocked by the truth that terrorist also has a twitter account and tweeted regularly.
2. Scorn him make fun of his future jail life.
3. Feeling ironic about his humane words.
4. Tsarnaev's close friends and network circles could be analyed more thoroughly. See below:³⁷

A Study has identified Dzhokhar Tsarnaev's social circles by mapping out relationship data across his friends on Twitter. They created a network graph, highlighting friend groups from high school and college, as well as a group of Islamic daily-quote style profiles. They noticed that each group behaves differently in response to the news and heightened visibility. Some high school friends defend Dzhokhar online, while the majority of his college network shut down their Twitter presence.

(Picture is from digg.com last visited on March 16, 2015)

“The black circle in the center represents Dzhokhar's Twitter handle (@J_tsar). To his right, we see the largest cluster (28%), consisting of a group of friends who went to CRLS (Cambridge Ringe & Latin School) with him. Many of these users clearly knew Dzhokhar, posting emotional responses and defending him online. The pink (25%) is another social friend group that's clearly from Cambridge based on the popularity of 'Cambridge' related strings in user location fields. In blue (25%), we see a friend group from the University of Massachusetts Dartmouth, where Dzhokhar has been attending college. At the height of the events, one of his connections from this cluster posted: "2 Chopper Gunners are landing in my school right now".³⁸

“The green cluster (16%) is another high school-based friend group. For example, one friend from this group posts: "dude he was my boy in [high school]," adding to the aggregate signal that helps us label this cluster. Users in this group seem to have a higher propensity to identify with religion, specifically Islam. One writes in response to online harassment: "Don't make assumptions when u don't know what Islam is, our prophet muhammed told us if we kill a cat we go to hell." In a completely different conversation from the same cluster, a friend writes: "Jahar & Tamerlan always told me to stick wit islam but they went about it the wrong way smh." Lastly, there's a small cluster of Twitter handles in light blue (6%) consisting of Islamic daily-quote style profiles, such as @MuslimSmiles, @IslamicThinking and @islamicthought.” ³⁹

Common Tsarnaev Reaction Samples⁴⁰ :
dinosaur trader  ‏ @dinosaurtrader  19 Apr 2013
most ironic tweet ever. RT @J_tsar Evil triumphs when good men do nothing #manhunt
aubreys.  ‏ @aubswhaat  19 Apr 2013
@bronze_bomber @butchonbutch @impuisivity No, he's being insensitive to the LGBTQ community. "Faggot" is not a word to describe evil.
Typical Masshole  ‏ @JustAMasshole  19 Apr 2013
“@J_tsar: I'm a stress free kind of guy” I wondah if he's still stress free?
Doober Pooberton  ‏ @daneZie  19 Apr 2013
Terrorist has a twitter account.
Nessa  ‏ @__NESSAA__  19 Apr 2013
@Es_Dons lol noooo I'm not trying to have a terrorist follow me
Jim Marous  ‏ @JimMarous  19 Apr 2013
@J_tsar According to @CNN this is the Twitter account of #suspect2. Been sending tweets since Monday. Amazing!
Jimmy  ‏ @_Jimmy_BIGGZ  19 Apr 2013
“@ms937babi: Ppl are saying @J_tsar is one of the bombers..Well according to his Tweets he seemed like a normal 20yr old boy.” ur a moron
hoopstar  ‏ @_InsertHoeJoke_  19 Apr 2013
too bad @J_tsar won't live long enough to enjoy all his new twitter followers

What can we learn from these tweets?

People tend to become mild in attitude about Tsarnaev over the passage of time. (Words used milder, more reasonable.)The defense is trying to use social media more aggressively than the prosecution or the court. (More sources of news are come from defendant than from the prosecution; judge tends to mitigate the effect of social media by prohibiting the memo about jurors from the defense team.)

Tsarnaev’s trial and how social media is relevant:

"Anyone, anywhere has access to this information. Why would it matter if it’s in Boston or somewhere else?" ⁴¹

--Gerald Kane, associate professor of information systems at Boston College

(Pictures are from Facebook, tumblr, CNN news report)


(Picture is captured from Pew Research Center's website)⁴²

The social media manhunt mostly ended around the end of April, 2013 when there was nothing important to report until the start of the trial. Question arose as to whether or not Tsarnaev will, in fact, receive a fair trial by his peers and/or if the presiding judge will end up relocating the trial after all.

Fair Trial impossible?

On January 22nd, Tsarnaev's defense team filed its third motion to relocate the trial out of Boston, supporting its request with a memo full of data, produced from the questionnaires issued to all 1,373 potential jurors. The memo was broadcasted throughout social media and subsequently sealed by Judge George O'Toole. 

For example:

A solid majority, 68 percent, had already deemed Tsarnaev guilty in their minds, despite not seeing a single shred of evidence or hearing a single piece of testimony in a court of law.⁴³

Social media may help to create impartial trials?

While social media can impede fair trials, it can also help create impartial trials as well because people have been conditioned to be more skeptical about information in general. "Social media may help to create impartial trials, as people learn to be more skeptical about what they hear on TV and on social and learn to be critical consumers of information. Most everyone who is a reasonably active social media person knows you need to be skeptical about information presented on social because its reliability is always questionable. Thus, people may be actually more equipped these days to set aside something they may have heard in order to get to the 'truth.'"⁴⁴

With that kind of exposure, does it really matter that where the trial will be held?

But there are people who argue that although the memo from the defense displayed some bias on the part of the jury pool, it's in part because of social media that the trial is unlikely to be relocated.

And since social media can reach to most people and very remote places, “Why would it matter if it’s in Boston or somewhere else?"⁴⁵

Security issues:

Social media can also aid in security measures taken by local officials wishing to keep demonstrators and court-goers safe. “They'll likely also be keeping tabs on social media, where Tsarnaev's supporters and bombing conspiracy theorists have been active.”⁴⁶

(Picture is capured from CBS news website)

Jury selection: ⁴⁷

From daycare drop-off to an ex-boyfriend in Afghanistan, jury selection reveals intimate details of everyday lives of jurors.  In the news, some potential jurors anonymously revealed their religious views, their financial situations, their family backgrounds and their health problems. This created hot topics like “whether jury should excludes Catholics”⁴⁸

(Picture is taken from Google, searching key words "Tsarnaev Catholic")

Change of Venue:⁴⁹

On, March 2, 2015, attorneys for Boston Marathon bombing suspect Dzhokhar Tsarnaev asked a judge for the fourth time to stop jury selection and move the trial somewhere else.

The latest motion to move the trial focuses on the 75 potential jurors who have been provisionally qualified, culled from a pool of 1,373. Defense attorneys said more than half have admitted to having personal ties to the case. Attorneys said that 23 said they already formed the opinion that Tsarnaev is guilty. Prosecutors said many of the connections were trivial.

Evidence exposure:

Another issue created by social media is that a lot of the evidence that will be used in the trial has already been exposed to the public, and therefore potentially the jurors, in advance of the trial through tweeted and Facebooked photos, accounts, and other forms of evidence relating to the bombing.

“Defense attorneys asked jurors should be allowed to see the entire bullet-ridden boat where he hid for hours and scrawled a note on the wall of the vessel before being captured by police”.⁵⁰

“Prosecutors argued a photo of the bloody section of the boat should be enough for jurors, but they may be willing to cut out a portion of the boat. The judge did not rule on the motion. ⁵¹

Conspiracy theorists also use social media to offer 'proof' that Dzhokhar Tsarnaev is not behind the Boston Marathon bombings. From the 'Dzhokhar Tsarnaev is innocent' Facebook group to the #freejahar hashtag on Twitter, social media users are showing their support for the 19-year-old some say was set up by the government.⁵²

(Pictures are from Daily News website and Boston Herald website)

Lawyer tactics:⁵³

Lawyers can also change their tactics based on information gathered from social media.

Defense attorneys may want to preserve the right to appeal the jury’s verdict, and thus stick with the not guilty plea. Meanwhile, they can still use the first stage of the trial, known as the guilt phase, to pitch their own case: That while Tsarnaev may have been involved in the bombings, he played a lesser, subordinate role, and his dominating, coercive older brother was the mastermind. In addition, letting jurors declare Tsarnaev guilty after a trial might feel like justice enough and make sentencing him to death seem less necessary.

Related parties exposure:

Social media has also granted us access to more information to all parties involved in the case. Because of the efforts of online information assembly, we can have a look at almost every related party connected to the trial and Tsarnaev, with hyperlinks about their pictures, bios and past stories.⁵⁴

Example:

The judge⁵⁵
O’Toole, 67, was born in Worcester and grew up in Leominster, one of four children. He graduated from Boston College in 1969 and from Harvard Law School in 1972. He was a partner at Hale & Dorr until his appointment to Boston Municipal Court in 1982.

Defense team

It is not clear who will take the leadership role with Tsarneav's defense, but people can get contact some of them through social media.⁵⁶

For example: Fick's LinkedIn.com profile says he received a bachelor of arts in Russian from Yale University and also attended Yale Law School. The profile also says he has full professional proficiency in the Russian language. His ability to speak Russian may help him with representing Tsarneav because of the suspect's ties to the region.

“This case is perfect for those people in the middle who think that the death penalty should be reserved for the most heinous crimes.”⁵⁷

Conclusion:

Social media continues to present a variety of new and exciting challenges for lawyers, both ethically and strategically. As social media continues to evolve, the legal fields opinions and usage of the media must evolve along with it. By keeping informed on social trends and precedents involving the use of social media in the law, lawyers can utilize social media in a meaningful and ethically permissible way. The ongoing Tsarnaev trial provides an interesting example of the many ways that social media is impacting various aspects of a highly publicized trial. As more information about the strategies of the parties becomes available, we will likely continue to see social media’s impact on the trial.