Public-Records Research on Jurors: What Is Fair Game

Twenty years ago, juror research meant a private investigator and a stack of county records. Today it means a laptop and about ninety seconds per name. The speed has changed. The rules have not changed as much as lawyers sometimes assume, and the ones that exist are specific.

This is a practitioner's overview, not a treatise. Your jurisdiction's rules of professional conduct, your judge's standing orders and any local rules on juror research control, and you should read them before every trial.

Research is permitted. Contact is not.

The starting point across most American jurisdictions is that reviewing publicly available information about a prospective juror is permissible, and communicating with a prospective juror is not.

The American Bar Association addressed this directly in Formal Opinion 466 (2014), which concluded that a lawyer may review a juror's public internet presence, including public social-media postings, but may not send an access request, "friend" request or any other communication to a juror. The opinion also addressed the wrinkle that made lawyers nervous: platforms that notify a user when someone views their profile. The ABA's view was that a network-generated notice is not a communication from the lawyer, though some state bar opinions have disagreed, and the safer course is to use tools and settings that do not generate one.

The practical rules that follow:

• Passive review is the line. Read what is public. Do not request, follow, connect, like, comment or message.
• No agents either. A lawyer may not do through a paralegal, investigator or vendor what the lawyer may not do directly.
• Stop at the courthouse door. Rule 3.5 in most jurisdictions prohibits ex parte communication with prospective jurors during the proceeding. Research is not communication; a message is.

Public records: broadly available, unevenly so

Beyond social media, the traditional public-records categories remain fair game in most jurisdictions:

• Voter registration, including party affiliation where the state makes it public
• Court records where the juror appears as a party in a civil or criminal matter
• Property and assessor records
• Professional licenses and business registrations
• Campaign contributions, which are public at the federal level and in most states

Availability varies enormously by state and county. Some voter files are open; some are restricted to political committees. Some court dockets are online; some are index cards in a basement. A tool or vendor that promises uniform coverage everywhere is promising something the records themselves do not support.

Confirm identity before you rely on anything

The most common practical error in juror research is not an ethics violation. It is attaching the wrong person's record to the right juror. Common names, shared addresses and stale records make false matches routine.

Good practice is to treat every record as probably about the juror until at least two independent points confirm it: an address that matches the jury list, an employer that matches the questionnaire, an age range that fits. Software that shows a match-confidence level is helpful here precisely because it makes the uncertainty visible instead of hiding it inside a clean-looking profile.

Know your judge

Some courts have adopted rules or standing orders on juror research: some require disclosure of research to the court or opposing counsel, some restrict research during trial, a few prohibit it altogether in certain case types. Some judges ask about it during voir dire. Before every trial, check:

1. The jurisdiction's rules of professional conduct and any bar ethics opinions on juror research
2. Local rules of the court
3. The judge's standing orders and any case-specific orders on juror privacy
4. Whether the case involves anonymous or numbered jurors, in which case research may be prohibited or impossible

What you find is not what you may use

A final point that gets less attention than it should. That you may lawfully learn something about a juror does not mean you may lawfully act on it. Peremptory challenges based on race, ethnicity or sex violate the Equal Protection Clause under Batson v. Kentucky and its progeny, and many states' rules of professional conduct independently prohibit discrimination in the practice of law on a longer list of protected characteristics.

Research that surfaces a juror's religion, national origin or similar characteristics does not create a permissible basis for a strike. Organize your research around case-relevant criteria, tie every strike to one of them, and write the reason down at the time.