Forensic Social Media: Uses & Ethical Ramifications ~ February 17, 2015 Potter Stewart US Courthouse

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1 Forensic Social Media: Uses & Ethical Ramifications ~ February 17, 2015 Potter Stewart US Courthouse Please click the blue hyperlinks below to go directly to a section. Social Networking Slides Professional Conduct Rule 3.5 ABA Formal Opinion 466 NY Ethics Opinion Article re: Juror pledge not to use internet Jury Instruction Erickson Dimas-Martinez v Arkansas Model Instruction Spoliation Slides ediscovery Spoliation article

2 Online Social Networking: Risks, Benefits and Practical Considerations Inns of Court February 17, 2015 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 2 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 2 1

3 The Tweeting Twit John is a successful young investment banker. He likes to share his personal and business matters with his friends on Twitter. His recent tweets include specific information regarding a new deal that he has landed, including how much money he will make on the deal. John is also fond of sharing intimate details about his active social life, such as the women that he dates, including some of his co-workers. 3 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 3 The Tweeting Twit Which of the following is true about John? A. He may be exposing the bank to liability for insider trading. B. He may be exposing the bank to liability for sexual harassment. C. He may be misappropriating the bank s trade secrets. D. All of the above. 4 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 4 2

4 Too Much Information Mary is a bright and conscientious human resources manager in charge of the company s recruiting. In addition to using a contractor to perform credit and criminal background checks on candidates, for which she obtains a release, Mary also personally checks the applicants pages on Facebook and other online social networks. Mary generally dings a candidate whose postings she deems inappropriate. 5 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 5 Too Much Information Is Mary s research legal? A. No, because Mary has violated the Fair Credit Reporting Act. B. No, unless Mary has obtained a release for the applicant. C. Yes, because anything an applicant posts on the Internet is fair game. D. Yes, unless Mary based her decision on a protected category. 6 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 6 3

5 Bad Burgers Burger Barn discovered that one of the most popular videos on YouTube is a very uncomplimentary parody of one of its commercials, in which what appears to be a Burger Barn employee tampers with burgers in a disgusting fashion. Burger Barn suspected one of its employees, but the employee denied any knowledge. Burger Barn contacted YouTube, but was unable to get any satisfaction, based on YouTube s privacy policy. Management then directed its IT department to review the suspect s account and discovered that the employee maintained a personal account on Gmail. The IT department was able to discover the account s password. Using the password, Burger Barn accessed the employee s account, established that the employee was the source of the YouTube video and consequently fired the employee. 7 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 7 Bad Burgers Which is true about Burger Barn s actions? A. BB s actions are permissible if the company has a policy stating that employees have no expectation of privacy when using company computer systems. B. BB has probably violated the federal Stored Communications Act. C. BB cannot terminate an employee for actions done outside the workplace. D. BB has a claim for defamation against YouTube for refusing to remove the posting. 8 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 8 4

6 Let's face it, everyone worries what goes on behind the scenes at fast-food places. Some Domino's employees posted a video that apparently shows one of them putting snot on a sandwich and generally acting gross around food. 9 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 9 22% of employees visit social networking sites 5 or more times per week and 23% visit social networking sites 1-4 times per week. 53% of employees said their social networking pages are none of them employer s business. 27% of employees surveyed said they don t consider the ethical consequences of posting comments, photos or videos online. 10 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 10 5

7 11 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 11 In a 2009 Poll conducted by SHRM, 1 out of 4 HR professionals said their organization used social networking sites to look up candidates before inviting them for an interview. More than 85% of employers polled said that they would be at least somewhat less likely to hire a candidate if the candidate s social networking profile or tweets showed evidence of unprofessional behavior. 12 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 12 6

8 Tips when using Social Media as a Hiring Tool Always be consistent. If you check one profile, check them all. Make sure there is a legitimate job-related reason for viewing a candidate s online profile. Online information may not always be accurate cross reference with the candidate s submitted application materials. Try to get written consent from the candidate first. Consider using a third party. 13 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 13 Tips When Monitoring Employees Use of Social Media Give notice It trumps the employee s reasonable expectation of privacy. Don t use a phantom friend. Be consistent in application of monitoring policies Consider barring access to specific cites Have a policy! 14 ATLANTA CINCINNATI CLEVELAND COLUMBUS DAYTON NEW YORK WASHINGTON, D.C. 14 7

9 1/28/2015 Rule 3.5: Impartiality & Decorum of the Tribunal The Center for Professional Responsibility Home> ABA Groups>Center for Professional Responsibility > Publications>Model Rules of Professional Conduct>Rule 3.5: Impartiality 8t Decorum of the Tribunal Rule 3.5: Impartiality & Decorum of the Tribunal Advocate Rule 3.5 Impartiality And Decorum Of The Tribunal A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress or harassment; or (d) engage in conduct intended to disrupt a tribunal. Comment Table of Contents Next Rule rrttp:// 1/1

10 AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY Formal Opinion 466 April 24,2014 Lawyer Reviewing Jurors' Internet Presence Unless limited by law or court order, a lawyer may review a juror's or potential juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror. A lawyer may not, either personally or through another, send an access request to a juror's electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b). The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b). In the course of reviewing a juror's or potential juror's Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal. The Committee has been asked whether a lawyer who represents a client in a matter that will be tried to a jury may review the jurors' or potential jurors' 1 presence on the Internet leading up to and during trial, and, if so, what ethical obligations the lawyer might have regarding information discovered during the review. Juror Internet Presence Jurors may and often will have an Internet presence through electronic social media or websites. General public access to such will vary. For example, many blogs, websites, and other electronic media are readily accessible by anyone who chooses to access them through the Internet. We will refer to these publicly accessible Internet media as "websites." For the purposes of this opinion, Internet-based social media sites that readily allow account-owner restrictions on access will be referred to as "electronic social media" or "ESM." Examples of commonly used ESM at the time of this opinion include Facebook, MySpace, Linkedln, and Twitter. Reference to a request to obtain access to 1. Unless there is reason to make a distinction, we will refer throughout this opinion to jurors as including both potential and prospective jurors and jurors who have been empaneled as members of a jury.

11 Formal Opinion another's ESM will be denoted as an "access request," and a person who creates and maintains ESM will be denoted as a "subscriber." Depending on the privacy settings chosen by the ESM subscriber, some information posted on ESM sites might be available to the general public, making it similar to a website, while other information is available only to a fellow subscriber of a shared ESM service, or in some cases only to those whom the subscriber has granted access. Privacy settings allow the ESM subscriber to establish different degrees of protection for different categories of information, each of which can require specific permission to access. In general, a person who wishes to obtain access to these protected pages must send a request to the ESM subscriber asking for permission to do so. Access depends on the willingness of the subscriber to grant permission. 2 This opinion addresses three levels of lawyer review of juror Internet presence: 1. passive lawyer review of a juror's website or ESM that is available without making an access request where the juror is unaware that a website or ESM has been reviewed; 2. active lawyer review where the lawyer requests access to the juror's ESM; and 3. passive lawyer review where the juror becomes aware through a website or ESM feature of the identity of the viewer; Trial Management and Jury Instructions There is a strong public interest in identifying jurors who might be tainted by improper bias or prejudice. There is a related and equally strong public policy in preventing jurors from being approached ex parte by the parties to the case or their agents. Lawyers need to know where the line should be drawn between properly investigating jurors and improperly communicating with them. 3 In today's Internetsaturated world, the line is increasingly blurred. 2. The capabilities of ESM change frequently. The committee notes that this opinion does not address particular ESM capabilities that exist now or will exist in the future. For purposes of this opinion, key elements like the ability of a subscriber to control access to ESM or to identify third parties who review a subscriber's ESM are considered generically. 3. While this Committee does not take a position on whether the standard of care for competent lawyer performance requires using Internet research to locate information about jurors that is relevant to the jury selection process, we are also mindful of the recent addition of Comment [8] to Model Rule 1.1. This comment explains that a lawyer "should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology." See also Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010) (lawyer must use "reasonable efforts" to find potential juror's litigation history in Case.net, Missouri's automated case management system); N. H. Bar Ass'n, Op /05 (lawyers "have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation"); Ass'n of the Bar of the City of N. Y. Comm. on Prof 1 Ethics, Formal Op ("Indeed, the standards of competence and diligence may require doing everything reasonably possible to learn about jurors who will sit in judgment on a case.").

12 Formal Opinion For this reason, we strongly encourage judges and lawyers to discuss the court's expectations concerning lawyers reviewing juror presence on the Internet. A court order, whether in the form of a local rule, a standing order, or a case management order in a particular matter, will, in addition to the applicable Rules of Professional Conduct, govern the conduct of counsel. Equally important, judges should consider advising jurors during the orientation process that their backgrounds will be of interest to the litigants and that the lawyers in the case may investigate their backgrounds, including review of their ESM and websites. 4 If a judge believes it to be necessary, under the circumstances of a particular matter, to limit lawyers' review of juror websites and ESM, including on ESM networks where it is possible or likely that the jurors will be notified that their ESM is being viewed, the judge should formally instruct the lawyers in the case concerning the court's expectations. Reviewing Juror Internet Presence If there is no court order governing lawyers reviewing juror Internet presence, we look to the ABA Model Rules of Professional Conduct for relevant strictures and prohibitions. Model Rule 3.5 addresses communications with jurors before, during, and after trial, stating: A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress or harassment... Under Model Rule 3.5(b), a lawyer may not communicate with a potential juror leading up to trial or any juror during trial unless authorized by law or court order. See, e.g., In re Holman, 286 S.E.2d 148 (S.C. 1982) (communicating with member of jury selected for trial of lawyer's client was "serious crime" warranting disbarment). 4. Judges also may choose to work with local jury commissioners to ensure that jurors are advised during jury orientation that they may properly be investigated by lawyers in the case to which they are assigned. This investigation may include review of the potential juror's Internet presence.

13 Formal Opinion A lawyer may not do through the acts of another what the lawyer is prohibited from doing directly. Model Rule 8.4(a). See also In re Myers, 584 S.E.2d 357 (S.C. 2003) (improper for prosecutor to have a lay member of his "jury selection team" phone venire member's home); cf. S.C. Ethics Op (1993) (lawyer "cannot avoid the proscription of the rule by using agents to communicate improperly" with prospective jurors). Passive review of a juror's website or ESM, that is available without making an access request, and of which the juror is unaware, does not violate Rule 3.5(b). In the world outside of the Internet, a lawyer or another, acting on the lawyer's behalf, would not be engaging in an improper ex parte contact with a prospective juror by driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer's jury-selection decisions. The mere act of observing that which is open to the public would not constitute a communicative act that violates Rule 3.5(b). 5 It is the view of the Committee that a lawyer may not personally, or through another, send an access request to a juror. An access request is an active review of the juror's electronic social media by the lawyer and is a communication to a juror asking the juror for information that the juror has not made public. This would be the type of ex parte communication prohibited by Model Rule 3.5(b). 6 This would be akin to driving down the juror's street, stopping the car, getting out, and asking the juror for permission to look inside the juror's house because the lawyer cannot see enough when just driving past. Some ESM networks have a feature that allows the juror to identify fellow members of the same ESM network who have passively viewed the juror's ESM. The details of how this is accomplished will vary from network to network, but the key feature that is 5. Or. State Bar Ass'n, Formal Op ("Lawyer may access publicly available information [about juror, witness, and opposing party] on social networking website"); N.Y. Cnty. Lawyers Ass'n, Formal Op. 743 (2011) (lawyer may search juror's "publicly available" webpages and ESM); Ass'n of the Bar of the City of N.Y. Comm. on Prof 1 Ethics, supra note 3 (lawyer may use social media websites to research jurors); Ky. Bar Ass'n, Op. E-434 (2012) ("If the site is 'public,' and accessible to all, then there does not appear to be any ethics issue."). See also N.Y. State Bar Ass'n, Advisory Op. 843 (2010) ("A lawyer representing a client in pending litigation may access the public pages of another party's social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation"); Or. State Bar Ass'n, Formal Op ("Accessing an adversary's public Web [sic] site is no different from reading a magazine or purchasing a book written by that adversary"); N.H. Bar Ass'n, supra note 3 (viewing a Facebook user's page or following on Twitter is not communication if pages are open to all members of that social media site); San Diego Cnty. Bar Legal Ethics Op (opposing party's public Facebook page may be viewed by lawyer). 6. See Or. State Bar Ass'n, supra note 5, fh. 2, (a "lawyer may not send a request to a juror to access non-public personal information on a social networking website, nor may a lawyer ask an agent to do so"); N.Y. Cnty. Lawyers Ass'n, supra note 5 ("Significant ethical concerns would be raised by sending a 'friend request,' attempting to connect via Linkedln.com, signing up for an RSS feed for a juror's blog, or 'following' a juror's Twitter account"); Ass'n of the Bar of the City of N.Y. Comm. on Prof 1 Ethics, supra note 3 (lawyer may not chat, message or send a "friend request" to a juror); Conn. Bar Ass'n, Informal Op (friend request is a communication); Mo. Bar Ass'n, Informal Op (friend request is a communication pursuant to Rule 4.2). But see N.H. Bar Ass'n, supra note 3 (lawyer may request access to witness's private ESM, but request must "correctly identify the lawyer... [and]... inform the witness of the lawyer's involvement" in the matter); Phila. Bar Ass'n, Advisory Op (lawyer may not use deception to secure access to witness's private ESM, but may ask the witness "forthrightly" for access).

14 Formal Opinion relevant to this opinion is that the juror-subscriber is able to determine not only that his ESM is being viewed, but also the identity of the viewer. This capability may be beyond the control of the reviewer because the notice to the subscriber is generated by the ESM network and is based on the identity profile of the subscriber who is a fellow member of the same ESM network. Two recent ethics opinions have addressed this issue. The Association of the Bar of the City of New York Committee on Professional Ethics, in Formal Opinion , concluded that a network-generated notice to the juror that the lawyer has reviewed the juror's social media was a communication from the lawyer to a juror, albeit an indirect one generated by the ESM network. Citing the definition of "communication" from Black's Law Dictionary (9 th ed.) and other authority, the opinion concluded that the message identifying the ESM viewer was a communication because it entailed "the process of bringing an idea, information or knowledge to another's perception including the fact that they have been researched." While the ABCNY Committee found that the communication would "constitute a prohibited communication if the attorney was aware that her actions" would send such a notice, the Committee took "no position on whether an inadvertent communication would be a violation of the Rules." The New York County Lawyers' Association Committee on Professional Ethics in Formal Opinion 743 agreed with ABCNY's opinion and went further explaining, "If a juror becomes aware of an attorney's efforts to see the juror's profiles on websites, the contact may well consist of an impermissible communication, as it might tend to influence the juror's conduct with respect to the trial." 8 This Committee concludes that a lawyer who uses a shared ESM platform to passively view juror ESM under these circumstances does not communicate with the juror. The lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM. This is akin to a neighbor's recognizing a lawyer's car driving down the juror's street and telling the juror that the lawyer had been seen driving down the street. Discussion by the trial judge of the likely practice of trial lawyers reviewing juror ESM during the jury orientation process will dispel any juror misperception that a lawyer is acting improperly merely by viewing what the juror has revealed to all others on the same network. While this Committee concludes that ESM-generated notice to a juror that a lawyer has reviewed the juror's information is not communication from the lawyer to the juror, the Committee does make two additional recommendations to lawyers who decide to review juror social media. First, the Committee suggests that lawyers be aware of these automatic, subscriber-notification features. By accepting the terms of use, the subscribernotification feature is not secret. As indicated by Rule 1.1, Comment 8, it is important for a lawyer to be current with technology. While many people simply click their agreement to the terms and conditions for use of an ESM network, a lawyer who uses an ESM network in his practice should review the terms and conditions, including privacy 7. Ass'n of the Bar of the City of N.Y. Comm. on Prof 1 Ethics, supra, note N.Y. Cnty. Lawyers' Ass'n, supra note 5.

15 Formal Opinion features - which change frequently - prior to using such a network. And, as noted above, jurisdictions differ on issues that arise when a lawyer uses social media in his practice. Second, Rule 4.4(a) prohibits lawyers from actions "that have no substantial purpose other than to embarrass, delay, or burden a third person..." Lawyers who review juror social media should ensure that their review is purposeful and not crafted to embarrass, delay, or burden the juror or the proceeding. Discovery of Juror Misconduct Increasingly, courts are instructing jurors in very explicit terms about the prohibition against using ESM to communicate about their jury service or the pending case and the prohibition against conducting personal research about the matter, including research on the Internet. These warnings come because jurors have discussed trial issues on ESM, solicited access to witnesses and litigants on ESM, not revealed relevant ESM connections during jury selection, and conducted personal research on the trial issues using the Internet. 9 In 2009, the Court Administration and Case Management Committee of the Judicial Conference of the United States recommended a model jury instruction that is very specific about juror use of social media, mentioning many of the popular social media by name. 10 The recommended instruction states in part: I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone at any time about this case or use these tools to communicate electronically with anyone about the case... You may not communicate with anyone about the case on your cell phone, through e- mail, Blackberry, iphone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, Linkedln, or YouTube.... I expect you will inform me as soon as you become aware of another juror's violation of these instructions. These same jury instructions were provided by both a federal district court and state criminal court judge during a three-year study on juries and social media. Their research found that "jury instructions are the most effective tool to mitigate the risk of juror misconduct through social media." 11 As a result, the authors recommend jury instruction on social media "early and often" and daily in lengthy trials For a review of recent cases in which a juror used ESM to discuss trial proceedings and/or used the Internet to conduct private research, read Hon. Amy J. St. Eve et al., More from the #Jury Box: The Latest on Juries and Social Media, 12 Duke Law & Technology Review no. 1, (2014), available at Judicial Conference Conrmittee on Court Administration and Case Management, Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate ahout a Case, USCOURTS.GOV (June 2012), Id. at Id. at 87.

16 Formal Opinion Analyzing the approximately 8% of the jurors who admitted to being "tempted" to communicate about the case using social media, the judges found that the jurors chose not to talk or write about the case because of the specific jury instruction not to do so. While juror misconduct via social media itself is not the subject of this Opinion, lawyers reviewing juror websites and ESM may become aware of misconduct. Model Rule 3.3 and its legislative history make it clear that a lawyer has an obligation to take remedial measures including, if necessary, informing the tribunal when the lawyer discovers that a juror has engaged in criminal or fraudulent conduct related to the proceeding. But the history is muddled concerning whether a lawyer has an affirmative obligation to act upon learning that a juror has engaged in improper conduct that falls short of being criminal or fraudulent. Rule 3.3 was amended in 2002, pursuant to the ABA Ethics 2000 Commission's proposal, to expand on a lawyer's previous obligation to protect a tribunal from criminal or fraudulent conduct by the lawyer's client to also include such conduct by any person. 13 Model Rule 3.3(b) reads: (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. Comment [12] to Rule 3.3 provides: Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so. Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyer's client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding. Part of Ethics 2000's stated intent when it amended Model Rule 3.3 was to incorporate provisions from Canon 7 of the ABA Model Code of Professional 13. Ethics 2000 Commission, Model Rule 3.3: Candor Toward the Tribunal, AMERICAN BAR ASSOCIATION, 3.html (last visited Apr. 18,2014).

17 Formal Opinion Responsibility (Model Code) that had placed an affirmative duty upon a lawyer to notify the court upon learning of juror misconduct: This new provision incorporates the substance of current paragraph (a)(2), as well as ABA Model Code of Professional Responsibility DR 7-102(B)(2) ("A lawyer who receives information clearly establishing that a person other than the client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal") and DR 7-108(G) ("A lawyer shall reveal promptly to the court improper conduct by a venireperson or juror, or by another toward a venireperson or juror or a member of the venireperson's or juror's family, of which the lawyer has knowledge"). Reporter's Explanation of Changes, Model Rule However, the intent of the Ethics 2000 Commission expressed above to incorporate the substance of DR 7408(G) in its new subsection (b) of Model Rule 3.3 was never carried out. Under the Model Code's DR 7-108(G), a lawyer knowing of "improper conduct" by a juror or venireperson was required to report the matter to the tribunal. Under Rule 3.3(b), the lawyer's obligation to act arises only when the juror or venireperson engages in conduct that is fraudulent or criminal. 15 While improper conduct was not defined in the Model Code, it clearly imposes a broader duty to take remedial action than exists under the Model Rules. The Committee is constrained to provide guidance based upon the language of Rule 3.3(b) rather than any expressions of intent in the legislative history of that rule. By passively viewing juror Internet presence, a lawyer may become aware of a juror's conduct that is criminal or fraudulent, in which case, Model Rule 3.3(b) requires the lawyer to take remedial measures including, if necessary, reporting the matter to the court. But the lawyer may also become aware of juror conduct that violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, and Rule 3.3(b) does not prescribe what the lawyer must do in that situation. While considerations of questions of law are outside the scope of the Committee's authority, applicable law might treat such juror activity as conduct that triggers a lawyer's duty to take remedial action including, if necessary, reporting the juror's conduct to the court under current Model Rule 3.3(b) Ethics 2000 Commission, Model Rule 3.3 Reporter's Explanation of Changes, AMERICAN BAR ASSOCIATION, 3rem.html (last visited Apr. 18,2014). 15. Compare MODEL RULES OF PROF'L CONDUCT R. 3.3(b) (2002) to N.Y. RULES OF PROF'L CONDUCT, R. 3.5(d) (2013) ("a lawyer shall reveal promptly to the court improper conduct by a member of the venire or a juror..."). 16. See, e.g., U.S. v. Juror Number One, 866 F.Supp.2d 442 (E.D. Pa. 2011) (failure to follow jury instructions and ing other jurors about case results in criminal contempt). The use of criminal contempt remedies for disregarding jury instructions is not confined to improper juror use of ESM. U.S. v. Rowe, 906 F.2d 654 (11th Cir. 1990) (juror held in contempt, fined, and dismissed from jury for violating court order to refrain from discussing the case with other jurors until after jury instructions delivered).

18 Formal Opinion While any Internet postings about the case by a juror during trial may violate court instructions, the obligation of a lawyer to take action will depend on the lawyer's assessment of those postings in light of court instructions and the elements of the crime of contempt or other applicable criminal statutes. For example, innocuous postings about jury service, such as the quality of the food served at lunch, may be contrary to judicial instructions, but fall short of conduct that would warrant the extreme response of finding a juror in criminal contempt. A lawyer's affirmative duty to act is triggered only when the juror's known conduct is criminal or fraudulent, including conduct that is criminally contemptuous of court instructions. The materiality of juror Internet communications to the integrity of the trial will likely be a consideration in determining whether the juror has acted criminally or fraudulently. The remedial duty flowing from known criminal or fraudulent juror conduct is triggered by knowledge of the conduct and is not preempted by a lawyer's belief that the court will not choose to address the conduct as a crime or fraud. Conclusion In sum, a lawyer may passively review a juror's public presence on the Internet, but may not communicate with a juror. Requesting access to a private area on a juror's ESM is communication within this framework. The fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when an ESM network setting notifies the juror of such review does not constitute a communication from the lawyer in violation of Rule 3.5(b). If a lawyer discovers criminal or fraudulent conduct by a juror related to the proceeding, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal. AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY 321 N. Clark Street, Chicago, Illinois Telephone (312) CHAIR: Paula J. Frederick, Atlanta, GA T. Maxfield Banner, Chattanooga, TN Barbara S. Gillers, New York, NY Amanda Jones, Chicago, IL Donald R. Lundberg, Indianapolis, IN Myles V. Lynk, Tempe, AZ J. Charles Mokriski, Boston, MA Ellen A. Pansky, South Pasadena, CA Jennifer A. Paradise, New York, NY«Richard H. Underwood, Lexington, KY CENTER FOR PROFESSIONAL RESPONSIBILITY: Dennis A. Rendleman, Ethics Counsel, Mary McDermott, Associate Ethics Counsel 2014 by the American Bar Association. All rights reserved.

19 1/28/2015 New York City Bar Association - Formal Opinion Jury Research and Social Media The Association of the Bar of the City of New York Committee on Professional Ethics Formal Opinion : JURY RESEARCH AND SOCIAL MEDIA TOPIC: Jury Research and Social Media DIGEST: Attorneys may use social media websites for juror research as long as no communication occurs between the lawyer and the juror as a result of the research. Attorneys may not research jurors if the result of the research is that the juror will receive a communication. If an attorney unknowingly or inadvertently causes a communication with a juror, such conduct may run afoul of the Rules of Professional Conduct. The attorney must not use deception to gain access to a juror's website or to obtain information, and third parties working for the benefit of or on behalf of an attorney must comport with all the same restrictions as the attorney. Should a lawyer learn of juror misconduct through otherwise permissible research of a juror's social media activities, the lawyer must reveal the improper conduct to the court. RULES: 3.5(a)(4); 3.5(a)(5); 3.5(d); 8.4 Question: What ethical restrictions, if any, apply to an attorney's use of social media websites to research potential or sitting jurors? OPINION I. Introduction Ex parte attorney communication with prospective jurors and members of a sitting jury has long been prohibited by state rules of professional conduct (see American Bar Association Formal Opinion 319 ("ABA 319")), and attorneys have long sought ways to gather information about potential jurors during voir dire (and perhaps during trial) within these proscribed bounds. However, as the internet and social media have changed the ways in which we all communicate, conducting juror research while complying with the rule prohibiting juror communication has become more complicated. In addition, the internet appears to have increased the opportunity for juror misconduct, and attorneys are responding by researching not only members of the venire but sitting jurors as well. Juror misconduct over the internet is problematic and has even led to mistrials. Jurors have begun to use social media services as a platform to communicate about a trial, during the trial (see WSJ Law Blog (March 12, 2012), and jurors also turn to the internet to conduct their own out of court research. For example, the Vermont Supreme Court recently overturned a child sexual assault conviction because a juror conducted his own research on the cultural significance of the alleged crime in Somali Bantu culture. State v. Abdi, No , 2012 WL (Vt. Jan. 26, 2012). In a case in Arkansas, a murder conviction was overturned because a juror tweeted during the trial, and in a Maryland corruption trial in 2009, jurors used Facebook to discuss their views of the case before deliberations. (Juror's Tweets Upend Trials, Wall Street Journal, March 2, 2012.) Courts have responded in various ways to this problem. Some judges have held jurors in contempt or declared mistrials (see id.) and other courts now include jury instructions on juror use of the internet. (See New York Pattern Jury Instructions, Section III, z"n/ra.)however, 79% of judges who responded to a Federal Judicial Center survey admitted that "they had no way of knowing whether jurors had violated a social-media ban." (Juror's Tweets, supra.) In this context, attorneys have also taken it upon themselves to monitor jurors throughout a trial. Just as the internet and social media appear to facilitate juror misconduct, the same tools have expanded an attorney's ability to conduct research on potential and sitting jurors, and clients now often expect that attorneys will conduct such research. Indeed, standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case. However, social media services and websites can blur the line between independent, private research and interactive, interpersonal "communication." Currently, there are no clear rules for conscientious attorneys to follow in order to both diligently represent their clients and to abide by applicable ethical obligations. This opinion applies the New York Rules of Professional Conduct (the "Rules"), specifically Rule 1/8

20 1/28/2015 New York City Bar Association - Formal Opinion Jury Research and Social Media 3.5, to juror research in the internet context, and particularly to research using social networking services and websites.-! The Committee believes that the principal interpretive issue is what constitutes a "communication" under Rule 3.5. We conclude that if a juror were to (i) receive a "friend" request (or similar invitation to share information on a social network site) as a result of an attorney's research, or (ii) otherwise to learn of the attorney's viewing or attempted viewing of the juror's pages, posts, or comments, that would constitute a prohibited communication if the attorney was aware that her actions would cause the juror to receive such message or notification. We further conclude that the same attempts to research the juror might constitute a prohibited communication even if inadvertent or unintended. In addition, the attorney must not use deception such as pretending to be someone else to gain access to information about a juror that would otherwise be unavailable. Third parties working for the benefit of or on behalf of an attorney must comport with these same restrictions (as it is always unethical pursuant to Rule 8.4 for an attorney to attempt to avoid the Rule by having a non-lawyer do what she cannot). Finally, if a lawyer learns of juror misconduct through a juror's social media activities, the lawyer must promptly reveal the improper conduct to the court. II. Analysis Of Ethical Issues Relevant To Juror Research A. Prior Authority Regarding An Attorney's Ability To Conduct Juror Research Over Social Networking Websites Prior ethics and judicial opinions provide some guidance as to what is permitted and prohibited in social media juror research. First, it should be noted that lawyers have long tried to learn as much as possible about potential jurors using various methods of information gathering permitted by courts, including checking and verifying voir dire answers. Lawyers have even been chastised for not conducting such research on potential jurors. For example, in a recent Missouri case, a juror failed to disclose her prior litigation history in response to a voir dire question. After a verdict was rendered, plaintiffs counsel investigated the juror's civil litigation history using Missouri's automated case record service and found that the juror had failed to disclosure that she was previously a defendant in several debt collection cases and a personal injury action.- Although the court upheld plaintiffs request for a new trial based on juror nondisclosure, the court noted that "in light of advances in technology allowing greater access to information that can inform a trial court about the past litigation history of venire members, it is appropriate to place a greater burden on the parties to bring such matters to the court's attention at an earlier stage." Johnson v. McCullough, 306 S.W.3d 551, (Mo. 2010). The court also stated that "litigants should endeavor to prevent retrials by completing an early investigation." Mat 559. Similarly, the Superior Court of New Jersey recently held that a trial judge "acted unreasonably" by preventing plaintiff's counsel from using the internet to research potential jurors during voir dire. During jury selection in a medical malpractice case, plaintiffs counsel began using a laptop computer to obtain information on prospective jurors. Defense counsel objected, and the trial judge held that plaintiff's attorney could not use her laptop during jury selection because she gave no notice of her intent to conduct internet research during selection. Although the Superior Court found that the trial court's ruling was not prejudicial, the Superior Court stated that "there was no suggestion that counsel's use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of 'fairness' or maintaining 'a level playing field.' The 'playing field' was, in fact, already 'level' because internet access was open to both counsel." Carino v. Muenzen, A T1, 2010 N.J. Super. Unpub. LEXIS 2154, at *27 (N.J. Sup. Ct. App. Div. Aug. 30, 2010)2 Other recent ethics opinions have also generally discussed attorney research in the social media context. For example, San Diego County Bar Legal Ethics Opinion ("SDCBA ") examined whether an attorney can send a "friend request" to a represented party. SDCBA found that because an attorney must make a decision to "friend" a party, even if the "friend request [is] nominally generated by Facebook and not the attorney, [the request] is at least an indirect communication" and is therefore prohibited by the rule against ex parte communications with represented parties.- In addition, the New York State Bar Association ("NYSBA") found that obtaining information from an adverse party's social networking personal webpage, which is accessible to all website users, "is similar to 2/8

21 1/28/2015 New York City Bar Association - Formal Opinion Jury Research and Social Media obtaining information that is available in publicly accessible online or print media, or through a subscription research service as Niexi or Factiva and that is plainly permitted." (NYSBA Opinion 843 at 2) (emphasis added). And most recently, the New York County Lawyers' Association ("NYCLA") published a formal opinion on the ethics of conducting juror research using social media. NYCLA Formal Opinion 743 ("NYCLA 743") examined whether a lawyer may conduct juror research during voir dire and trial using Twitter, Facebook and other similar social networking sites. NYCLA 743 found that it is "proper and ethical under Rule 3.5 for a lawyer to undertake a pretrial search of a prospective juror's social networking site, provided there is no contact or communication with the prospective juror and the lawyer does not seek to 'friend' jurors, subscribe to their Twitter accounts, send jurors tweets or otherwise contact them. During the evidentiary or deliberation phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social networking site of a juror but must not 'friend' the juror, , send tweets or otherwise communicate in any way with the juror or act in any way by which the juror becomes aware of the monitoring." (NYCLA 743 at 4.) The opinion further noted the importance of reporting to the court any juror misconduct uncovered by such research and found that an attorney must notify the court of any impropriety "before taking any further significant action in the case." Id. NYCLA concluded that attorneys cannot use knowledge of juror misconduct to their advantage but rather must notify the court. As set forth below, we largely agree with our colleagues at NYCLA. However, despite the guidance of the opinions discussed above, the question at the core of applying Rule 3.5 to social media what constitutes a communication has not been specifically addressed, and the Committee therefore analyzes this question below. B. An Attorney May Conduct Juror Research Using Social Media Services And Websites But Cannot Engage In Communication With A Juror 1. Discussion of Features of Various Potential Research Websites Given the popularity and widespread usage of social media services, other websites and general search engines, it has become common for lawyers to use the internet as a tool to research members of the jury venire in preparation for jury selection as well as to monitor jurors throughout the trial. Whether research conducted through a particular service will constitute a prohibited communication under the Rules may depend in part on, among other things, the technology, privacy settings and mechanics of each service. The use of search engines for research is already ubiquitous. As social media services have grown in popularity, they have become additional sources to research potential jurors. As we discuss below, the central question an attorney must answer before engaging in jury research on a particular site or using a particular service is whether her actions will cause the juror to learn of the research. However, the functionality, policies and features of social media services change often, and any description of a particular website may well become obsolete quickly. Rather than attempt to catalog all existing social media services and their ever-changing offerings, policies and limitations, the Committee adopts a functional definition.- We understand "social media" to be services or websites people join voluntarily in order to interact, communicate, or stay in touch with a group of users, sometimes called a "network." Most such services allow users to create personal profiles, and some allow users to post pictures and messages about their daily lives. Professional networking sites have also become popular. The amount of information that users can view about each other depends on the particular service and also each user's chosen privacy settings. The information the service communicates or makes available to visitors as well as members also varies. Indeed, some services may automatically notify a user when her profile has been viewed, while others provide notification only if another user initiates an interaction. Because of the differences from service to service and the high rate of change, the Committee believes that it is an attorney's duty to research and understand the properties of the service or website she wishes to use for jury research in order to avoid inadvertent communications. 2. What Constitutes a "Communication"? Any research conducted by an attorney into a juror or member of the venire's background or behavior is governed in part by Rule 3.5(a)(4), which states: "a lawyer shall not... (4) communicate or cause another to communicate with a member of the jury venire from which the jury will be selected for the trial of a case or, during the trial of a case, with any member of the jury unless authorized to do so by law or court order." The Rule does not contain a mens rea requirement; by its literal terms, it prohibits all communication, even if inadvertent. Because of this, the application of 3/8

22 1/28/2015 New York City Bar Association - Formal Opinion Jury Research and Social Media Rule 3.5(a)(4) to juror research conducted over the internet via social media services is potentially more complicated than traditional juror communication issues. Even though the attorney's purpose may not be to communicate with a juror, but simply to gather information, social media services are often designed for the very purpose of communication, and automatic features or user settings may cause a "communication" to occur even if the attorney does intend not for one to happen or know that one may happen. This raises several ethical questions: is every visit to a juror's social media website considered a communication? Should the intent to research, not to communicate, be the controlling factor? What are the consequences of an inadvertent or unintended communications? The Committee begins its analysis by considering the meaning of "communicate" and "communication," which are not defined either in the Rule or the American Bar Association Model Rules. - Black's Law Dictionary (9th Ed.) defines "communication" as: "1. The expression or exchange of information by speech, writing, gestures, or conduct; the process of bringing an idea to another's perception. 2. The infonnation so expressed or exchanged." The Oxford English Dictionary defines "communicate" as: "To impart (information, knowledge, or the like) (to a person; also formerly with); to impart the knowledge or idea of (something), to inform a person of; to convey, express; to give an impression of, put across." Similarly, Local Rule 26.3 of the United States District Courts for the Southern and Eastern Districts of New York defines "communication" (for the purposes of discovery requests) as: "the transmittal of information (in the form of facts, ideas, inquiries or otherwise)." Under the above definitions, whether the communicator intends to "impart" a message or knowledge is seemingly irrelevant; the focus is on the effect on the receiver. It is the "transmission of," "exchange of or "process of bringing" information or ideas from one person to another that defines a communication. In the realm of social media, this focus on the transmission of information or knowledge is critical. A request or notification transmitted through a social media service may constitute a communication even if it is technically generated by the service rather than the attorney, is not accepted, is ignored, or consists of nothing more than an automated message of which the "sender" was unaware. In each case, at a minimum, the researcher imparted to the person being researched the knowledge that he or she is being investigated. 3. An Attorney May Research A Juror Through Social Media Websites As Long As No Communication Occurs The Committee concludes that attorneys may use search engines and social media services to research potential and sitting jurors without violating the Rules, as long as no communication with the juror occurs. The Committee notes that Rule 3.5(a)(4) does not impose a requirement that a communication be willful or made with knowledge to be prohibited. In the social media context, due to the nature of the services, unintentional communications with a member of the jury venire or the jury pose a particular risk. For example, if an attorney views a juror's social media page and the juror receives an automated message from the social media service that a potential contact has viewed her profile even if the attorney has not requested the sending of that message or is entirely unaware of it the attorney has arguably "communicated" with the juror. The transmission of the information that the attorney viewed the juror's page is a communication that may be attributable to the lawyer, and even such minimal contact raises the specter of the improper influence and/or intimidation that the Rules are intended to prevent. Furthermore, attorneys cannot evade the ethics rules and avoid improper influence simply by having a non-attorney with a name unrecognizable to the juror initiate communication, as such action will run afoul of Rule 8.4 as discussed in Section 11(C), infra. Although the text of Rule 3.5(a)(4) would appear to make any "communication" even one made inadvertently or unknowingly a violation, the Committee takes no position on whether such an inadvertent communication would in fact be a violation of the Rules. Rather, the Committee believes it is incumbent upon the attorney to understand the functionality of any social media service she intends to use for juror research. If an attorney cannot ascertain the functionality of a website, the attorney must proceed with great caution in conducting research on that particular site, and should keep in mind the possibility that even an accidental, automated notice to the juror could be considered a violation of Rule 3.5. More specifically, and based on the Committee's current understanding of relevant services, search engine websites may be used freely for juror research because there are no interactive functions that could allow jurors to learn of the attorney's research or actions. However, other services may be more difficult to navigate depending on their functionality and each user's particular privacy settings. Therefore, attorneys may be able to do some research on certain sites but cannot use all aspects of the sites' social functionality. An attorney may not, for example, send a chat, message or "friend request" to a member of the jury or venire, or take any other action that will transmit information to the juror because, if the potential juror learns that the attorney seeks access to her personal information then she has on /8

23 1/28/2015 New York City Bar Association - Formal Opinion Jury Research and Social Media received a communication. Similarly, an attorney may read any publicly-available postings of the juror but must not sign up to receive new postings as they are generated. Finally, research using services that may, even unbeknownst to the attorney, generate a message or allow a person to determine that their webpage has been visited may pose an ethical risk even if the attorney did not intend or know that such a "communication" would be generated by the website. The Committee also emphasizes that the above applications of Rule 3.5 are meant as examples only. The technology, usage and privacy settings of various services will likely change, potentially dramatically, over time. The settings and policies may also be partially under the control of the person being researched, and may not be apparent, or even capable of being ascertained. In order to comply with the Rules, an attorney must therefore be aware of how the relevant social media service works, and of the limitations of her knowledge. It is the duty of the attorney to understand the functionality and privacy settings of any service she wishes to utilize for research, and to be aware of any changes in the platforms' settings or policies to ensure that no communication is received by a juror or venire member. C. An Attorney May Not Engage in Deception or Misrepresentation In Researching Jurors On Social Media Websites Rule 8.4(c), which governs all attorney conduct, prohibits deception and misrepresentation.- In the jury research context, this rule prohibits attorneys from, for instance, misrepresenting their identity during online communications in order to access otherwise unavailable information, including misrepresenting the attorney's associations or membership in a network or group in order to access a juror's information. Thus, for example, an attorney may not claim to be an alumnus of a school that she did not attend in order to view a juror's personal webpage that is accessible only to members of a certain alumni network. Furthermore, an attorney may not use a third party to do what she could not otherwise do. Rule 8.4(a) prohibits an attorney from violating any Rule "through the acts of another." Using a third party to communicate with a juror is deception and violates Rule 8.4(c), as well as Rule 8.4(a), even if the third party provides the potential juror only with truthful information. The attorney violates both rules whether she instructs the third party to communicate via a social network or whether the third party takes it upon herself to communicate with a member of the jury or venire for the attorney's benefit. On this issue, the Philadelphia Bar Association Professional Guidance Committee Opinion ("PBA ") concluded that if an attorney uses a third party to "friend" a witness in order to access information, she is guilty of deception because "[this action] omits a highly material fact, namely, that the third party who asks to be allowed access to the witness' pages is doing so only because she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit." (PBA at 3.) New York City Bar Association Formal Opinion similarly held that a lawyer may not gain access to a social networking website under false pretenses, either directly or through an agent, and NYCLA 743 also noted that Rule 8.4 governs juror research and an attorney therefore cannot use deception to gain access to a network or direct anyone else to "friend" an adverse party. (NYCLA 743 at 2.) We agree with these conclusions; attorneys may not shift their conduct or assignments to non-attorneys in order to evade the Rules. D. The Impact On Jury Service Of Attorney Use Of Social Media Websites For Research Although the Committee concludes that attorneys may conduct jury research using social media websites as long as no "communication" occurs, the Committee notes the potential impact of jury research on potential jurors' perception of jury service. It is conceivable that even jurors who understand that many of their social networking posts and pages are public may be discouraged from jury service by the knowledge that attorneys and judges can and will conduct active research on them or learn of their online albeit public social lives. The policy considerations implicit in this possibility should inform our understanding of the applicable Rules. In general, attorneys should only view information that potential jurors intend to be and make public. Viewing a public posting, for example, is similar to searching newspapers for letters or columns written by potential jurors because in both cases the author intends the writing to be for public consumption. The potential juror is aware that her information and images are available for public consumption. The Committee notes that some potential jurors may be unsophisticated in terms of setting their privacy modes or other website functionality, or may otherwise misunderstand when information they post is publicly available. However, in the Committee's view, neither Rule 3.5 nor Rule 8.4(c) prohibit attorneys from viewing public information that a juror might be unaware is publicly available, except in the rare instance where it is clear that the juror intended the information to be private. Just as the attorney must monitor 5/8

24 1/28/2015 New York City Bar Association - Formal Opinion Jury Research and Social Media technological updates and understand websites that she uses for research, the Committee believes that jurors have a responsibility to take adequate precautions to protect any information they intend to be private. E. Conducting On-Going Research During Trial Rule 3.5 applies equally with respect to a jury venire and empanelled juries. Research permitted as to potential jurors is permitted as to sitting jurors. Although there is, in light of the discussion in Section III, infra, great benefit that can be derived from detecting instances when jurors are not following a court's instructions for behavior while empanelled, researching jurors mid-trial is not without risk. For instance, while an inadvertent communication with a venire member may result in an embarrassing revelation to a court and a disqualified panelist, a communication with a juror during trial can cause a mistrial. The Committee therefore re-emphasizes that it is the attorney's duty to understand the functionality of any social media service she chooses to utilize and to act with the utmost caution. IE. An Attorney Must Reveal Improper Juror Conduct to the Court Rule 3.5(d) provides: "a lawyer shall reveal promptly to the court improper conduct by a member of the venire or a juror, or by another toward a member of the venire or a juror or a member of her family of which the lawyer has knowledge." Although the Committee concludes that an attorney may conduct jury research on social media websites as long as "communication" is avoided, if an attorney learns of juror misconduct through such research, she must promptly- notify the court. Attorneys must use their best judgment and good faith in determining whether a juror has acted improperly; the attorney cannot consider whether the juror's improper conduct benefits the attorney.- On this issue, the Committee notes that New York Pattern Jury Instructions ("PJI") now include suggested jury charges that expressly prohibit juror use of the internet to discuss or research the case. PJI 1:11 Discussion with Others - Independent Research states: "please do not discuss this case either among yourselves or with anyone else during the course of the trial.... It is important to remember that you may not use any internet service, such as Google, Facebook, Twitter or any others to individually or collectively research topics concerning the trial... For now, be careful to remember these rules whenever you use a computer or other personal electronic device during the time you are serving as juror but you are not in the courtroom." Moreover, PJI 1:10 states, in part, "in addition, please do not attempt to view the scene by using computer programs such as Goggle Earth. Viewing the scene either in person or through a computer program would be unfair to the parties...." New York criminal courts also instruct jurors that they may not converse among themselves or with anyone else upon any subject connected with the trial. NY Crim. Pro (McKinney's 2002). The law requires jurors to comply with the judge's charge^ and courts are increasingly called upon to determine whether jurors' social media postings require a new trial. See, e.g.,smead v. CL Financial Corp., No. 06CC11633, 2010 WL (Cal. Super. Ct. Sept. 15, 2010) (holding that juror's posts regarding length of trial were not prejudicial and denying motion for new trial). However, determining whether a juror's conduct is misconduct may be difficult in the realm of social media. Although a post or tweet on the subject of the trial, even if unanswered, can be considered a "conversation," it may not always be obvious whether a particular post is "connected with" the trial. Moreover, a juror may be permitted to post a comment "about the fact [of] service on jury duty." IV. Post-Trial In contrast to Rule 3.4(a)(4), Rule 3.5(a)(5) allows attorneys to communicate with a juror after discharge of the jury. After the jury is discharged, attorneys may contact jurors and communicate, including through social media, unless "(i) the communication is prohibited by law or court order; (ii) the juror has made known to the lawyer a desire not to communicate; (iii) the communication involves misrepresentation, coercion, duress or harassment; or (iv) the communication is an attempt to influence the juror's actions in future jury service." Rule 3.5(a)(5). For instance, NYSBA Opinion 246 found that "lawyers may communicate with jurors concerning the verdict and case." (NYSBA 246 (interpreting former EC 7-28; DR 7-108(D).) The Committee concludes that this rule should also permit communication via social media services after the jury is discharged, but the attorney must, of course, comply with all ethical obligations in any communication with a juror after the discharge of the jury. However, the Committee notes that "it [is] unethical for a lawyer to harass, entice, or induce or exert influence on a juror" to obtain information or her testimony to support a motion for a new trial. (ABA 319.) V. Conclusion 6/8

25 1/28/2015 New York City Bar Association - Formal Opinion Jury Research and Social Media The Cornmittee concludes that an attorney may research potential or sitting jurors using social media services or websites, provided that a communication with the juror does not occur. "Communication," in this context, should be understood broadly, and includes not only sending a specific message, but also any notification to the person being researched that they have been the subject of an attorney's research efforts. Even if the attorney does not intend for or know that a communication will occur, the resulting inadvertent communication may still violate the Rule. In order to apply this rule to social media websites, attorneys must be mindful of the fact that a communication is the process of bringing an idea, information or knowledge to another's perception including the fact that they have been researched.in the context of researching jurors using social media services, an attorney must understand and analyze the relevant technology, privacy settings and policies of each social media service used for jury research. The attorney must also avoid engaging in deception or misrepresentation in conducting such research, and may not use third parties to do that which the lawyer cannot. Finally, although attorneys may communicate with jurors after discharge of the jury in the circumstances outlined in the Rules, the attorney must be sure to comply with all other ethical rules in making any such communication. 1. Rule 3.5(a)(4) states: "a lawyer shall not... (4) communicate or cause another to communicate with a member of the jury venire from which the jury will be selected for the trial of a case or, during the trial of a case, with any member of the jury unless authorized to do so by law or court order." 2. Missouri Rule of Professional Conduct 3.5 states: "A lawyer shall not: (a) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order." 3. The Committee also notes that the United States Attorney for the District of Maryland recently requested that a court prohibit attorneys for all parties in a criminal case from conducting juror research using social media, arguing that "if the parties were permitted to conduct additional research on the prospective jurors by using social media or any other outside sources prior to the in court voir dire, the Court's supervisory control over the jury selection process would, as a practical matter, be obliterated." (Aug. 30, 2011 letter from R. Rosenstein to Hon. Richard Bennet.) The Committee is unable to determine the court's ruling from the public file. 4. California Rule of Profession Conduct states, in part: "(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer." 5. As of the date of this writing, May 2012, three of the most common social media services are Facebook, Linkedln and Twitter. 6. Although the New York City Bar Association Formal Opinion ("NYCBA ") and SDCBA (both addressing social media "communication" in the context of the "No Contact" rule) were helpful precedent for the Committee's analysis, the Committee is unaware of any opinion setting forth a definition of "communicate" as that term is used in Rule 4.2 or any other ethics rule. 7. Rule 8.4 prohibits "conduct involving dishonesty, fraud, deceit or misrepresentation," and also states "a lawyer or law firm shall not: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts or another." (Rule 8.4(c),(a).) 8. New York City Bar Association Formal Opinion defined "promptly" to mean "as soon as reasonably possible." 9. Although the Committee is not opining on the obligations of jurors (which is beyond the Committee's purview), the Committee does note that if a juror contacts an attorney, the attorney must promptly notify the court under Rule 3.5(d). re/ethics-^ 7/8

26 1/28/2015 New York City Bar Association - Formal Opinion Jury Research and Social Media 10. People v. Clarke, 168 A.D.2d 686 (2d Dep't 1990) (holding that jurors must comply with the jury charge). 11. USv. Fumo, 639 F. Supp. 2d 544, 555 (E.D. Pa. 2009) affd, 655 F.3d 288 (3d Cir. 2011) ("[The juror's] comments on Twitter, Facebook, and her personal web page were innocuous, providing no indication about the trial of which he was a part, much less her thoughts on that trial. Her statements about the fact of her service on jury duty were not prohibited. Moreover, as this Court noted, her Twitter and Facebook postings were nothing more than harmless ramblings having no prejudicial effect. They were so vague as to be virtually meaningless. [Juror] raised no specific facts dealing with the trial, and nothing in these comments indicated any disposition toward anyone involved in the suit.") (internal citations omitted). The Association of the Bar of the City of New York Stay connected! Join us on Twitter. Facebook & Linkedln 8/8

27 1/28/2015 U.S. Judge Considers Making Jurors Vow Not to Use Web - NYTirnes.com Judge Considers Pledge for Jurors on Internet Use By COLIN MOYNIHAN Published: September 18, 2011 As a federal judge looked over lists of proposed questions for prospective jurors in the case of Viktor Bout, a Russian businessman accused of planning to sell weapons to Colombian rebels, one question suddenly stood out to her: "Do you go on the Internet?" TWITTER LINKEDIN PRINT Related Times Topic: Jury System Connect With NYTMetro Follow us on Twitterand like us on Facebookfor news and conversation. That question, rhetorical as it might seem nowadays, prompted the judge.shira A. Scheindlin of Federal District Court in Manhattan, to muse aloud about problems caused by jurors who look up information in cyberspace to supplement evidence presented in the courtroom. REPRINTS "I am keenly aware that there are convictions set aside all over the country when we learn later during deliberations a juror looked up the keyword or the key name," the judge said at the hearing, held this month. "We in the judiciary have been discussing this." A few moments later, Judge Scheindlin told the lawyers that she would write a pledge that jurors might be required to sign, promising that they would not turn to the Web to look up Mr. Bout or anything related to his trial until it was over. Those who signed the pledge, Judge Scheindlin said, would be subject to perjury charges if they broke the agreement. While it is not clear whether other judges have used similar measures, several lawyers and experts said they did not know of any other instances. "I have never heard of a judge asking jurors to sign a pledge or any kind of written document," said Tara Trask, the president of the American Society of Trial Consultants.who commended Judge Scheindlin for a "forward-thinking idea." Jurors rendering a verdict may consider only evidence presented during a trial, and judges have tried to ensure that deliberations are not contaminated by outside information. Juries are typically instructed not to read newspaper articles or watch television programs about the cases they are involved in. Judges now often add instructions telling jurors not to research cases on the Web, but the ubiquity of laptops, smartphones and other devices has made it easier and perhaps more tempting for jurors to do exactly that. In the Bout case, defense lawyers immediately endorsed Judge Scheindlin's idea. Prosecutors appeared more reluctant to embrace the possibility of a pledge, saying they thought an oral directive could suffice. SHARE data:text/html;charset=utf-8,%3ch1%^ 1/2

28 1/28/2015 U.S. Judge Considers Making Jurors Vow Not to Use Web - NYTimes.com But some legal scholars wondered whether the normal instructions were effective in preventing jurors from doing Internet research. "I think it is inevitable that courts will have to do something more than simply ask jurors not to look at what is available to them every time they turn on the computer," said Suzanne B. Goldberg, a professor at Columbia Law School. Over the last few years, some lawyers have begun using the phrase "Google mistrial" to refer to cases disrupted by jurors searching the Web. One of the more notable examples took place in Florida in 2009, when a judge declared a mistrial in a federal drug prosecution after learning that nine jurors had used the Web to research the case. The Bout trial would appear to offer particularly rich fodder for independent research. Mr. Bout, who has pleaded not guilty, is accused of agreeing to sell millions of dollars' worth of weaponry, including surface-to-air missiles and AK-47S, to federal agents posing as members of the Revolutionary Armed Forces of Colombia, or FARC. The agents claimed that they wanted the arms to use against American pilots monitoring drug trafficking. Mr. Bout, a former Soviet air force officer who speaks several languages, is considered by many to be the world's biggest arms dealer and has been referred to by some as the Merchant of Death. He is thought to have provided the basis for the 2005 film "Lord of War." in which Nicolas Cage portrays a weapons seller pursued by Interpol. In pretrial hearings, Judge Scheindlin and the lawyers in the case have carefully carved out which parts of Mr. Bout's history will be presented to the jurors and which parts will be left out. The judge has said, for instance, that she will not allow the mention of countries like Libya, Liberia and Rwanda, which have come up in connection with Mr. Bout, because references to those nations could prejudice the jury. During the hearing this month, Judge Scheindlin told the lawyers that she wanted to figure out a practical way of dissuading jurors from doing searches that would violate the parameters she had agreed upon with the lawyers. "I can't seize their computers and their BlackBerrys," she said. "I can't lock them up. I can try to intimidate them." It remains to be seen how well a pledge, if instituted, might work, said Stephen Gillers, a professor at New York University law school. "Judge Scheindlin apparently believes that the affirmative act of actually signing a specific pledge may more dramatically impress jurors with their duty and increase the likelihood of obedience," Professor Gillers wrote in an message. "I think she's correct. It can help and certainly can't hurt." data:text/html;charset=utf-8,%3ch1%^ 2/2

29 1/28/2015 Revisedjury instructions: Do not use the Internet UTSanDiego.com Revised jury instructions: T)o not use the Internet Researching, discussing of cases 'huge problem' By Greg Moran 2 A.M. SEPT. 13,2009 PRINT C COMMENTS Type the name "Jennifer Strange" into your favorite search engine and see how many hits come up. Or try the terms "Hold Your Wee for a Wii" or "water intoxication" and look at the tallies. You get tens of thousands of results. That is exactly what San Diego lawyer Harvey Levine wants to stop jurors from doing in an upcoming, high-profile trial over the death of Strange during a radio station contest in Jury selection is set to begin this week in Sacramento. In the latest sign of the collision between the courts and new communication technologies, jurors will have to sign declarations attesting that they will not use "personal electronic and media devices" to research or communicate about any aspect of the case. That includes computers, cell phones and laptops. Jurors will have to sign the declarations, made under penalty of perjury, both before and after they serve. It is believed to be the first time in California that such a move has been made. It comes at a time when lawyers are becoming increasingly concerned about jurors firing up their iphones and BlackBerrys to update their statuses and more easily breach rules that prohibit them from seeking information outside the courtroom. Judges routinely tell jurors not to discuss any aspect of the case, consult outside sources or do independent research. But experienced trial lawyers 1 ~ u... : si. i. -T n.. J data:text/html;charset=utf-8,%3ch^ 1/3

30 1/28/2015 Revised jury instructions: Do not use the Internet UTSanDiego.com "It's a huge problem," said San Diego criminal defense lawyer Christopher Plourd. He was recently involved in a case in which a juror, during deliberations, searched Google with the term "attempted murder." One jury expert said Levine's move was intriguing but probably will not be enough to stem the problem. "I think it reinforces the general admonishment jurors get," jury consultant Toni Blake said. "When people have to sign something, they might be more likely to obey it. But this is a huge concern, and it gets worse and worse every year with more people on Facebook and Twitter." Veteran San Diego trial lawyer Vincent Bartolotta agreed. Jurors are told not to go to the scene of, say, a car accident, on their own, he said. "But heck, they can pull up Google Earth and be at the scene in a heartbeat," he said. "Technology is changing the face of the courtroom." Levine was last seen in San Diego courts in July 2008 after reaching a $5.5 million settlement in a lawsuit filed by former Chargers linebacker Steve Foley, who was shot by an off-duty Coronado police officer. Now Levine is representing one of Strange's children in a wrongful-death lawsuit against Entercom Communications, the owner of Sacramento radio station KDND-FM. Strange died 2/4 years ago after participating in an on-air contest in which contestants drank as much water as they could without going to the restroom. The winner got a Wii game console. In court papers, Levine argued that jurors "conducting independent research on Internet sites whether through computers or through cellular phones with Internet capabilities has become a judicially recognized occurrence and has been found to constitute juror misconduct" in several cases across the nation. PAGE: I 2 m data:text/html;charset=utf-8,%3che^^ 2/3

31 Page 1 Hl0 LexisNexis ERICKSON DIMAS-MARTINEZ, APPELLANT v. STATE OF ARKANSAS, APPELLEE No. CR 11-5 SUPREME COURT OF ARKANSAS 2011 Ark. 515; 385 S.W.3d 238; 2011 Ark. LEXIS 593 December 8,2011, Opinion Delivered NOTICE: THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. COUNSEL: For Appellant: Janice Wegener Vaughn, Katherine Sanderson Streett. For Appellee: Attorney General. SUBSEQUENT HISTORY: Corrected December 13, As JUDGES: DONALD L. CORBIN, Associate Justice. PRIOR HISTORY: [***1] APPEAL FROM THE BENTON COUNTY CIRCUIT COURT, NO. CR A, HON. DAVID CLINGER, JUDGE. Magana-Galdamez v. State, 104 Ark. App. 280, 291 S.W.3d 203, 2009 Ark. App. LEXIS 468 (2009) DISPOSITION: REMANDED. REVERSED AND OPINION BY: DONALD L. CORBIN OPINION [*1] [**240] DONALD L. CORBIN, Associate Justice Appellant Erickson Dimas-Martinez appeals an order of the Benton County Circuit Court convicting him of capital murder and aggravated robbery and sentencing him to death and life imprisonment, respectively.' On appeal, he alleges that the circuit court erred in (1) denying his motion for a mistrial after

32 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593, *** Page 2 informing the jury that this court would automatically review Appellant's case; (2) refusing to dismiss jurors who disregarded the circuit court's instructions or to subsequently declare a mistrial; (3) allowing the State to introduce evidence during sentencing of a prior incident for which Appellant had not been charged or convicted; (4) allowing evidence of unrelated bad acts, weapons, and ammunition; and (5) ordering a new mental evaluation at the request of the State. Because Appellant was sentenced to death, we have jurisdiction pursuant to Arkansas Supreme Court Rule 1-2(a)(2) [**241] (2011). We reverse Appellant's conviction and sentence and remand this matter for a new trial. 1 Although [***2] the State asserts that Appellant is only challenging his conviction for capital murder, the notices of appeal reflect that Appellant is appealing his convictions for both capital murder and aggravated robbery. [*2] Because Dimas-Martinez does not challenge the sufficiency of the evidence supporting his convictions, only a brief recitation of the facts is necessary. See, e.g., Vance v. State, 2011 Ark. 243, 383 S.W.3d 325. The record reflects that authorities were notified of a possible homicide just inside the Springdale city limits on December 30, Authorities found the partially clothed body of a young black male lying on his back with a single gunshot wound to the center of his forehead. The victim was later identified as seventeen-year-old Derrick Jefferson. In the course of investigating the homicide, authorities interviewed several people who saw Jefferson just before his murder. Wilfredo Cortez told authorities that he met Jefferson, through his sister Melissa Cortez, on December 30, Cortez, Melissa, Jefferson, and Jefferson's friend, Freddie Ochoa, went to the Bottoms Up nightclub in Fayetteville, but left after a short time. After leaving the club in Fayetteville, the [***3] foursome split up, with Jefferson going with Cortez to the Rio Bravo club in Springdale. When the pair arrived at Rio Bravo, they discovered it was closed. While in the parking lot, another car pulled up. Inside the second car were two Hispanic males and two white females. Authorities later discovered that the two men were Appellant and Uris Magana-Galdamez, also known as Jason. The females were sisters, Keri McConnell and Candie Drain. McConnell and Drain invited Jefferson and Cortez to a party at a duplex in Springdale, and they agreed to go. Sometime shortly after arriving at the party, Jefferson left with Drain to go to a store to buy cigarettes but came back a few minutes later. Cortez told authorities that he grew nervous, and when Jefferson returned Cortez demanded that they leave. [*3] Jefferson did not want to leave the party and went inside the house to see if he could find a ride home, and Cortez then left.

33 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593,*** Page 3 According to Ladislao Magana-Palma, who was renting the duplex where the party was and who is also Magana-Galdamez's uncle, Appellant told Jefferson he would give him a ride home. Magana-Palma stated that shortly thereafter, Appellant told Jefferson it was time to go, and Appellant, [***4] Jefferson, Magana-Galdamez, and the girls, McConnell and Drain, left in Appellant's car. Drain stated that Appellant gave Jefferson the car keys and asked Jefferson to drive because Jefferson had not been drinking. Appellant told the group he wanted to stop by a friend's house. Appellant went in alone and returned to the car about fifteen minutes later. He instructed Jefferson to stop at a second house, stating he had to get something. Appellant and Magana-Galdamez got out of the car to talk. Appellant then walked back to the car and asked if anyone had a cell phone. When they each denied having a cell phone, Appellant stuck a gun in the window, pointed it at Jefferson, and told him to get out of the car. Appellant continued to point the gun at Jefferson, while Magana-Galdamez held a knife on him, and demanded that Jefferson give him all his money. Appellant then ordered Jefferson to give him his shirt and jacket and snatched a hat off of Jefferson's head. Magana-Galdamez got into the driver's seat and started the car. As Appellant started to return to the car, Jefferson followed and Appellant turned and shot him. When Appellant got back into the car, he told Drain and McConnell not [***5] to say anything and threw a ten dollar bill into the backseat where they were sitting. He again threatened the girls, telling them [**242] he would harm their family if they said anything about the murder. [*4] Appellant was arrested and charged with one count each of capital murder and aggravated robbery. 2 He was tried before a jury and convicted and sentenced as set forth above. Thereafter, Appellant filed a motion for new trial, arguing that there was juror misconduct, which warranted a new trial. Specifically, Appellant asserted that a juror was tweeting during the trial, despite specific instructions from the judge to not do so and, thus, where it was apparent that the juror could not follow the judge's instruction in that regard, it could not be assumed that he followed the instructions with regard to the law. The circuit court denied the motion for new trial. This appeal followed. 2 Magana-Galdamez was also arrested and charged as an accomplice, but the two cases were ultimately severed. I. Violation of Caldwell v. Mississippi As his first point on appeal, Appellant argues that the circuit court erred in refusing to grant a mistrial after informing the jury that this court would automatically [***6] review Appellant's case. According to Appellant, the circuit court made repeated references to this court's appellate review, thereby violat-

34 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593, *** Page 4 ing the Supreme Court's decision in Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985), which prohibits the prosecutor in a case from informing a jury that an appeal will be had. The State argues that part of Appellant's argument is not preserved for review, as Appellant failed to make a proper objection. Moreover, the State asserts that there is no Caldwell violation where the circuit court never specifically addressed the jury's role in sentencing and did not affirmatively misstate the law or mislead the jury in any way. [*5] Because we are reversing Appellant's convictions and sentences based on the issue of juror misconduct and remanding for a new trial, it is not necessary to address the merits of this argument. Bradford v. State, 325 Ark. 278, 927 S.W.2d 329 (1996). As the challenged statements were made by the circuit judge, who has since retired from the bench, it is unlikely that this issue will arise again during a new trial and, thus, we need not address it. II. Juror Misconduct Next, Appellant argues that the circuit court erred in failing to dismiss [***7] jurors who disregarded the circuit court's instructions and, thereafter, in failing to grant his motion for a mistrial based on allegations of juror misconduct. Specifically, Appellant points to the facts that one juror fell asleep during the guilt phase of the trial, a fact that was brought to the circuit court's attention, and a second juror was posting on his Twitter account during the case, and continued to do so even after being questioned by the circuit court, as evidence of juror misconduct that calls into question the fairness of his trial. The allegation of juror misconduct related to the juror tweeting during the trial was also raised in a motion for new trial but denied by the circuit court. The State counters that Appellant did not preserve an objection to the sleeping juror and cannot demonstrate prejudice with regard to the twittering [**243] juror as the juror never tweeted specifics about the case. Because we conclude that the one [*6] juror sleeping and a second juror tweeting constituted juror misconduct, we reverse and remand for a new trial. 3 Twitter is a real-time information network that lets people share and discuss what is happening at a particular moment in time through [***gj m e u s e Gf "tweets," updates composed of 140 characters or less. See Twitter, available at The service allows users either to Direct Message (DM) specific individuals or to use "twitter posts" accessible to the public. The process of posting messages on Twitter is commonly referred to as "tweeting." Before turning to the merits of the juror-misconduct issue, we must review the State's allegation that Appellant

35 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593, *** Page 5 failed to preserve the issue of juror misconduct with regard to the sleeping juror. The record reflects that counsel for Appellant requested a bench conference, wherein she stated that I would like you to take note that the juror who's seated in juror's seat number ten is sleeping quite a bit and I would like the Court to kind of keep an eye so we could ask to have him removed if it continued. The circuit court replied that he had been watching the juror (hereinafter referred to as "Juror 1") and that "[h]e comes and goes. I've sent him a cup of water." Thereafter, the court recessed proceedings and sent the jurors on a break. Counsel for Appellant reiterated her concern about Juror 1: Mr. Saxton was actually making note of the time that he nodded off. There [***9] were five minutes at times when he was sleeping and then he was in and out, and his co-juror seated to his right was nudging him there at the end to keep him awake. This is obviously technical... testimony, but all testimony is critical and this juror has now missed out chunks of it, and I don't know that you can get that back. The only way he will be able to judge this testimony at this point is have another juror tell him what she testified to and that is absolutely inappropriate. Thereafter, the circuit court brought Juror 1 to chambers to question him about the sleeping. The following colloquy took place: THE COURT: I've got a couple of questions to ask you because I was a little bit concerned if you're getting drowsy up there. JUROR [1]: Okay. THE COURT: Were you getting a little drowsy? [*7] JUROR [1]: I might have been. THE COURT: Now, do you feel like you've picked up everything so far? JUROR [1]: Yes, I have. THE COURT: Can you - do you remember what this stuff was we were just going through? It's kind of technical. JUROR [1]: It was real technical, yes. THE COURT: But have you taken notes? JUROR [1]: Yes, I have.

36 2011 Ark. 515, *; 385 S.W.3d 238, **; 2011 Ark. LEXIS 593, *** Page 6 THE COURT: YOU don't think you've... missed anything? JUROR [1]: [***10] Not really. THE COURT: [D]id one of your fellow jurors nudge ~ kneed you, bump you a while ago to ~ JUROR [1]: A little bit. Yes, she did. After Juror 1 left the chambers, counsel for Appellant reiterated her concern that the juror had dozed off and missed some testimony and, alternatively, asked the court to be aware of the fact that he appeared to be dozing. The circuit court announced that he was not going to dismiss him from the jury panel but advised all parties to continue to watch him. Thereafter, the trial resumed with Appellant cross-examining State's witness Chantelle Taylor, with the Arkansas State Crime Lab, regarding forensic analysis of evidence recovered in this case. Shortly thereafter the State rested, and Appellant renewed prior objections he had raised, including his objection to the sleeping juror. [**244] Counsel for Appellant specifically argued, [*8] [W]e also... had an issue about a juror who seemed to have some difficulty in keeping awake, and I want to just make the record on that. As I understand it, the bailiff even got concerned enough to take water to that juror. At this point, we would ask that juror be replaced by alternate number one. We discussed that in chambers when it happened. Uh, I think that the record should be clear that there was sufficient concern about that juror that he... was not able to pay sufficient attention, especially during some fairly technical scientific testimony and that record was made previously. The circuit court denied the motion with regard to removing the juror, indicating that he had seen nothing else from the juror that caused concern. This court addressed whether an issue of juror misconduct related to a sleeping juror was preserved for appeal in Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996). There, the appellant moved for a new trial on the basis that his case was decided by eleven jurors, where one of the jurors was sleeping. This court held that the juror-misconduct issue was not preserved for appeal. The court in Carter held that "a claim of jury misconduct raised for the first time in a motion for new trial be accompanied by an affirmative showing that the defense was unaware of the misconduct until after the trial." Id. at 403, 921 S.W.2d at 928 (quoting Oliver v. State, 322 Ark. 8,

37 2011 Ark. 515, *; 385 S.W.3d 238, **; 2011 Ark. LEXIS 593,*** Page 7 20, 907 S.W.2d 706, 713 (1995)). In determining that the appellant could not sustain his burden of demonstrating [***12] juror misconduct, this court explained that the defense was aware of the sleeping juror and did nothing to correct the situation and, thus, the issue was not preserved for appeal. Here, as opposed to Carter, Appellant's counsel notified the circuit court during the trial that she had noticed a juror sleeping. Counsel put the court on notice that she was concerned that the juror had slept through some technical testimony and there was no way for that juror to recoup that testimony. And, again, after the court called the juror to [*9] chambers and the juror stated that he had not missed much, Appellant's counsel reiterated her concern that he had missed some technical testimony. Nonetheless, the court held that the juror would remain on the panel. And, again, after the State rested its case, Appellant's counsel asked that the juror be removed based on the fact that he had fallen asleep and missed testimony. The circuit court denied this request. It is apparent to us that Appellant properly raised a challenge to the juror's sleeping and obtained a ruling on the request for the juror to be removed. Accordingly, the issue is properly preserved for our review. Turning to the merits of this argument, [***13] this court has held that following an allegation of juror misconduct, the moving party bears the burden of proving both the misconduct and that a reasonable possibility of prejudice resulted from it. Holsombach v. State, 368 Ark. 415, 246 S.W.3d 871 (2007); Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2001); State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000). We will not presume prejudice in such situations. Cherry, 341 Ark. 924, 20 S.W.3d 354. The moving party must show that the alleged misconduct prejudiced his chances for a fair trial. Id.; Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). Whether unfair prejudice occurred is a matter for the sound discretion of the circuit court. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990). [**245] This court addressed the issue of a sleeping juror in Dolan v. State, 40 Ark. 454 (1883), where the appellant argued that he was entitled to a new trial because a juror fell asleep during closing arguments. In support of his motion, the appellant attached affidavits from two of his attorneys, stating that they noticed the presiding judge direct another juror to wake up the sleeping juror. At a hearing on the motion for new trial, the juror [***14] was questioned by the [*10] court about whether he was sleeping, and the juror stated that he only dozed off for about a half of a minute. The motion for new trial was denied, and this court affirmed. Specifically, this court found that the allegation of juror misconduct was not grounds for a new trial, stating "it seems that not much of the eloquence of the learned advocate was wasted upon the drowsy juror." Id. at 463; see also Pelham v. Page, 6 Ark. 535 (1846) (holding

38 2011 Ark. 515, *; 385 S.W.3d 238, **; 2011 Ark. LEXIS 593,*** Page 8 new trial not warranted on the basis that one of the jurors was, to all appearance, asleep during a portion of the trial). We most recently addressed the sleeping-juror issue in Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002). There, the appellant appealed the denial of his motion for new trial based on an allegation of juror misconduct. He argued that the circuit court erred in denying his motion for new trial, which alleged that as many as three jurors dozed off and on during the trial. To support his contention, Henderson offered affidavits and testimony from his sister and his mother that these jurors slept or dozed periodically throughout the trial. Both indicated that they did not notify Henderson's attorney [***15] or the circuit court about this problem until after the trial was over. Henderson argued that this juror misconduct presented a reasonable possibility of prejudice in that twenty-five percent of the jurors were not paying attention at various times during trial. This court affirmed the denial of the motion for new trial, finding that the appellant failed to sustain his burden of making an affirmative showing that the defense was unaware of the misconduct until after trial and that this misconduct prejudiced his chances for a fair trial. [*11] These prior cases are distinguishable from the case at hand. They either involved a juror who dozed off for just a minute or involved a case where the trial court was not put on notice of a sleeping juror until after the trial was over. Here, counsel notified the court of the sleeping juror in a timely fashion. Specifically, counsel notified the court that the juror had been dozing for at least five minutes, such that the judge sent him a cup of water and another juror nudged him to wake him up. The court was allowed to question the juror about all of this, and then seemingly relied on the juror's assertion that he did not miss much in deciding to allow [***16] the juror to remain on the panel. A juror who was asleep for at least five minutes has no way of knowing what he may have missed during the presentation of the evidence. And, contrary to the State's position at oral argument of this matter, it is not acceptable for a juror to doze off, as long as the juror hears the "vast majority" of the evidence. In this instance, the court, having noticed the juror sleeping and having Appellant object to the juror's continued presence on the panel, could have easily substituted one of the alternates for the sleeping juror. While this is a matter within the sound discretion of the circuit court, under the facts of this case, the circuit court abused that discretion in not removing Juror 1. Accordingly, we reverse and remand Appellant's conviction and sentence. Nevertheless, we will discuss the remaining issue of juror misconduct, as well as the remaining [**246] points on appeal, because of the likelihood that they may arise again. We now turn to the issue of juror misconduct based on the juror tweeting during trial. Counsel for Appellant noti-

39 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593,*** Page 9 fled the circuit court that a juror (hereinafter referred to as "Juror 2") had been posting messages on his Twitter [***17] account during the trial. Counsel explained [*12] that during the noon hour on the day that all evidence was submitted in the sentencing phase, Juror 2 tweeted "Choices to be made. Hearts to be broken. We each define the great line." Counsel for Appellant argued that this tweet seemed to be a comment about the proceedings, particularly when it was tweeted immediately after the close of the State's rebuttal case. Moreover, counsel for Appellant argued that it was a flagrant violation of the circuit court's instruction against Twittering and demonstrated that Juror 2 could not follow the court's instructions. Finally, counsel for Appellant pointed out that one of the people following Juror 2's tweets was a reporter, with a Twitter account identified as Ozark Unbound. Thereafter, the court questioned Juror 2 as follows: THE COURT: NOW, it has been brought to my attention that during ~ during the course of the trial that you have from time to time, uh, twittered, whatever that is. Have you? JUROR [2]: Um, I twittered like day three in court or, you know, something about ~ not necessarily the case but just the time link about the court. THE COURT: All right. But you haven't JUROR [2]: Not discussed [* * * 18] any of the case. THE COURT: Well, I want to ask you about a specific twitter and, uh, I want you to think about it and then tell me what it means. JUROR [2]: Okay. THE COURT: Okay. It's says: Choices to be made. Hearts to be broken. We each define the great line. About 20 hours ago via text. Now what does that mean? JUROR [2]: Well, I'm a little shocked. That's a little creepy. But, uh, it means, um THE COURT: Would you prefer to come up here to the bench? [*13] JUROR [2]: Yeah. Um, what it means ~ oh, wait. You want me to come up there? THE COURT: I was gonna bring you up here if you're JUROR [2]: I can say it. THE COURT: Okay, go ahead. JUROR [2]: I'm not having trouble. THE COURT: All right.

40 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593, *** Page 10 JUROR [2]: What it means was, um, not only like to pertain to this case but also to future stuff. Um, obviously, whatever we as a jury decide ~ you know, I'm not necessarily saying I know what's going to be decided, but we have to decide ~ make a huge decision. Either way, you know, if we do decide something like it's just gonna ~ a lot of people are either going to be mad about it watching the news because, you know, people have expressed to me you're on that court case, right? I can't talk about it. So [***19] I leave. So there's a ton of people watching this. And either way we decide, people are either going to be angry or people are going to be hurt either way. So what I was meaning by that was, you know, we have to define the great line of, you know, where we stand on a subject and, you know, what we have to choose ~ decide in the future. And also "Define the Great Line" was an Underoath album, and I thought I'd throw that in there along with my tweet. [**247] THE COURT: Well, have you already made up your mind in this case what you're going to how you're going to vote? JUROR [2]: No, because I'm waiting for the other 11 to help me come to a conclusion. THE COURT: All right. JUROR [2]: But I'm trying to prepare myself just because you know, um, the death penalty or even this case is a little uncomfortable just because, um, I have not seen death in my life, like, firsthand. So the talk of death is a little uncomfortable just because it's an unknown ~ it's an unknown area for me. THE COURT: All right. Mr. Stone, do you have any questions of [Juror 2]? MR. STONE: No, I don't. [*14] THE COURT: Ms. Streett? Ms. STREETT: NO, sir. THE COURT: All right, have -- now, have you followed the Court's instructions about [***20] not discussing the particulars of this case with anybody? JUROR [2]: Yes, sir. THE COURT: Okay.

41 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593,*** Page 11 After Juror 2 was questioned by the circuit court, counsel for Appellant expressed concern that the misconduct resulted from the fact that in order for a juror to be qualified to sit on a panel he or she must be able to follow the instructions of the court. Specifically, counsel stated the following: This court told them not to tweet about this case. That is the problem. He did. This is a death penalty capital murder case, and we have a juror who has now flagrantly disregarded this court's instructions. That disqualifies him. The court disagreed, however, ruling that even though the juror admitted to disregarding the instruction not to tweet, it was not a "material breach of my instruction or of his oath." Thus, the court refused to strike Juror 2 from the panel. More troubling is the fact that after being questioned about whether he had tweeted during the trial, Juror 2 continued to tweet during the trial. Once counsel for Appellant learned of this they moved for a new trial, arguing that this was further evidence of the juror's inability to follow the court's directives such that it constituted [***21] juror misconduct. In his motion for new trial, Appellant stated that Juror 2 tweeted two different times on April 1, 2010, during the time the jury was deliberating in the sentencing phase. Specifically, at 1:27 p.m., Juror 2 tweeted: "If its wisdom we seek... We should run to the strong tower." Then, [*15] again at 3:45 p.m., he tweeted, "Its over." But, the jury did not announce that it had reached a sentence until 4:35 p.m. The circuit court denied Appellant's motion for new trial, finding that Appellant suffered no prejudice. Here, we have a situation where a juror admitted that he disregarded the circuit court's instruction not to twitter about the case. And, even after the juror was questioned, admitted to the misconduct, and was again admonished not to discuss the case, he continued to tweet, specifically during sentencing deliberations. Moreover, not only did the judge specifically instruct the jurors not to tweet at the beginning of the trial, each time the court took a recess, it instructed the jurors not to discuss the case with anyone. Specifically, the jury was repeatedly instructed to pay attention to all of the evidence, not to deliberate until all the evidence was presented, [***22] and not to discuss the case with anyone. More significantly, the circuit court instructed the jury prior to opening statements: When you're back in the jury room, it's fine with me to use your cell phone if you need to call home or call business. [**248] Just remember, never discuss this case over your cell phone. And don't Twitter anybody

42 2011 Ark. 515, *; 385 S.W.3d 238, **; 2011 Ark. LEXIS 593,*** Page 12 about this case. That did happen down in Washington County and almost had a, a $15 million law verdict overthrown. So don't Twitter. Don't use your cell phone to talk to anybody about this case other than perhaps the length of the case or something like that. (Emphasis added.) And, again, each time the court went into recess, the circuit court would remind the jurors not to discuss the case with anyone. Because of the very nature of Twitter as an on online social media site, Juror 2's tweets about the trial were very much public discussions. Even if such discussions were one-sided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion. As the Third Circuit Court of Appeals recognized, [*16] If anything, the risk of such prejudicial communication may be greater when a juror comments on a blog [***23] or social media website than when she has a discussion about the case in person, given that the universe of individuals who are able to see and respond to a comment on Facebook or a blog is significantly larger. United States v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011). Notably, even though it recognized the potential dangers in a juror communicating on a social media site, the Third Circuit ultimately affirmed the lower's court denial of the defendant's motion for a new trial, finding that the juror's statements were vague and "harmless ramblings" that were not sufficient proof of juror misconduct that resulted in prejudice to the defendant. Id. at 306. In fact, in cases where courts have declined to fmd prejudicial juror misconduct, the general consensus is that jurors are presumed to be unbiased to follow court's instructions. See Martin v. Royse, No. l:08-cv-246, 2010 U.S. Dist. LEXIS 58217, 2010 WL (N.D. Ind. June 11, 2010); State v. Dellinger, 225 W. Va. 736, 696 S.E.2d 38 (W.Va. 2010). Each of the foregoing cases is distinguishable, however. First, the procedural posture of this case is not that Appellant was prejudiced by the fact that the juror tweeted; rather, Appellant avers the prejudice results from the fact [***24] that the juror admitted to the misconduct, which proves that he failed to follow the court's instructions, and it is the failure to follow the law that prejudiced Appellant. Although this is an issue of first impression for this court, it should be noted that our Administrative Order No. 6 was amended on May 27, 2010, and includes the following provision:

43 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593,*** Page 13 (7) Electronic devices shall not be used in the courtroom to broadcast, record, photograph, , blog, tweet, text, post, or transmit by any other means except as may be allowed by the court. Thus, this court has recognized the importance that jurors not be allowed to post musings, thoughts, or any other information about trials on any online forums. The possibility for [*17] prejudice is simply too high. Such a fact is underscored in this case, as Appellant points out, because one of the juror's Twitter followers was a reporter. Thus, the media had advance notice that the jury had completed its sentencing deliberations before an official announcement was made to the court. This is simply unacceptable, and the circuit court's failure to acknowledge this juror's inability to follow the court's directions was an abuse of discretion. This [***25] court recognized in Cherry, 341 Ark. 924, 20 S.W.3d 354, that a defendant is entitled to a fair trial, not a perfect trial. There, we determined that Cherry was denied a fair trial when it came to light that jurors had prejudged his guilt [**249] and, thus, had failed to follow the court's instructions. Likewise, Appellant was denied a fair trial in this case where Juror 2 disregarded the circuit court's instructions and tweeted about the case and Juror 1 slept through part of the trial. Finally, we take this opportunity to recognize the wide array of possible juror misconduct that might result when jurors have unrestricted access to their mobile phones during a trial. Most mobile phones now allow instant access to a myriad of information. Not only can jurors access Facebook, Twitter, or other social media sites, but they can also access news sites that might have information about a case. There is also the possibility that a juror could conduct research about many aspects of a case. Thus, we refer to the Supreme Court Committee on Criminal Practice and the Supreme Court Committee on Civil Practice for consideration of the question of whether jurors' access to mobile phones should be limited [***26] during a trial. [*18] III. Evidence of Aggravating Circumstance For his third point, Appellant argues that the circuit court erred in allowing the State to introduce evidence related to an uncharged felony; specifically, a shooting that occurred at the Casa Torres nightclub during the sentencing phase of his trial. According to Appellant, the law is in a state of flux as to whether an aggravator should be submitted to the jury on the "slight" rather than the "substantial" evidence standard. Appellant urges that, in this instance, the State sought to introduce evidence of an uncharged, unconvicted felony in which the only

44 2011 Ark. 515, *; 385 S.W.3d 238, **; 2011 Ark. LEXIS 593, *** Page 14 evidence of Appellant's involvement came from a witness who had already admitted to lying under oath. The State counters that the circuit court did not err in admitting the evidence after finding that there was substantial evidence that Appellant had committed a prior violent felony. Moreover, the State asserts that Appellant prevailed on this issue as the jury found that there was not substantial [***27] evidence of the Casa Torres incident to support a finding that it was an aggravating circumstance. At the outset, we agree with the State that Appellant cannot demonstrate that the admission of the Casa Torres incident constituted reversible error where, as here, the jury did not find that this constituted an aggravating circumstance when it deliberated punishment. Moreover, the jury found two other aggravating circumstances in imposing a sentence of death. This court has recognized that only one aggravating circumstance need be present for [*19] a jury to impose the death penalty in a capital-murder case. Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995). Nevertheless, we take this opportunity to clarify the law regarding the evidentiary standard for submitting an aggravating circumstance to the jury. Arkansas Code Annotated section (Supp. 2009) governs procedure in a capital-murder trial and provides in relevant part as follows: (4)(A) If the defendant and the state are accorded an opportunity to rebut the evidence, in determining the sentence evidence may be presented to the jury as to any: (i) Matter relating to an aggravating circumstance enumerated in ; [**250] (C) The [***28] admissibility of evidence relevant to an aggravating circumstance set forth in is governed by the rules governing the admission of evidence in a trial of a criminal matter. An aggravating circumstance as set forth in Arkansas Code Annotated section (3) (Supp. 2009) includes a previously committed felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person. This court has previously addressed the issue of what quantum of proof is required before the State is allowed to submit an aggravator to the jury. In Willett v. State, 335 Ark. 427, , 983

45 2011 Ark. 515, *; 385 S.W.3d 238, **; 2011 Ark. LEXIS 593, *** Page 15 S.W.2d 409, (1998), this court noted the following: Appellant contends that by allowing the jury's consideration of those aggravating and mitigating circumstances for which there is some evidence, however slight, that we have unconstitutionally modified our requirement for substantial evidence to establish an aggravating circumstance beyond a reasonable doubt. This argument stems from our decision in Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). In Miller, we considered the problems inherent in the widespread [***29] practice by [*20] trial courts of submitting to the jury during the sentencing phase all mitigating and statutory aggravating factors whether or not there was any evidence to support them, and expressed our view that the better practice would be to only submit for the jury's consideration those aggravating and mitigating factors for which there is any evidence, however slight. Id. We noted that each of the jury's findings as to the existence of aggravating and mitigating circumstances was not a separate little verdict and also made the observation, upon which we did not rely, that "we do not require the same degree of proof to sustain a jury finding that an aggravating or mitigating circumstance exists as we would require to sustain a conviction if that circumstance was a separate crime." Miller, 269 Ark. at 355, 605 S.W.2d at 439. That statement is not correct with respect to the degree of proof required by a jury to support an aggravating circumstance which must be found to exist beyond a reasonable doubt to justify a sentence of death. In Miller, we reviewed the jury's findings of aggravating circumstances justifying the imposition of the death sentence and applied the correct standard [***30] of review. We found that "there was sufficient evidence for the jury to find beyond a reasonable doubt that appellant killed the deceased to eliminate a witness and thus hopefully avoid arrest...." Id. The United States Court of Appeals for the Eighth Circuit pointed out that the language in Miller was flawed, but concluded that we had followed a correct standard of review. Miller v. Lockhart, 65 F.3d 676, (8th Cir. 1995). In our

46 2011 Ark. 515, *; 385 S.W.3d 238, **; 2011 Ark. LEXIS 593, *** Page 16 later cases we have restated the standard that we will "review the sufficiency of the State's evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the existence of the aggravating circumstance beyond a reasonable doubt." Kemp v. State, 324 Ark. [178, 200], 919 S.W.2d [943, 953 (1996)]. We do not change the rule established in Miller which allows the jury to consider those mitigating and statutory aggravating circumstance for which evidence, however slight, exists. However, we will continue to review all findings relating to aggravating circumstances which support the imposition of a death penalty to determine whether there existed substantial [**251] evidence for the jury to find beyond a reasonable [***31] doubt that one or more aggravating circumstances existed, that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, and that the aggravating circumstances justified a sentence of death beyond a reasonable doubt. Willett is not an anomaly. This court has repeatedly held that whenever there is evidence of an aggravating or mitigating circumstance, however slight, the matter should be submitted to the jury for consideration. See Wertz v. State, 31'4 Ark. 256, 287 S.W.3d 528 (2008); Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003). But, once the jury has found that an [*21] aggravating circumstance exists beyond a reasonable doubt, this court may affirm only if the State has presented substantial evidence in support of each element therein. E.g., Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002); Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other and permits the trier of fact to reach a conclusion without having to resort to speculation or conjecture. See Greene, 335 Ark. 1, 977 S.W.2d 192. We now recognize the inherent [***32] inconsistency of our position in Willett and its progeny. The reasoning adopted by the dissent in Willett is more consistent with the proper evidentiary threshold required for submission of an aggravator. There, the dissent explained as follows: There is one final statement in the majority's discussion of this point that I find troublesome. The majority correctly holds that a jury's

47 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593,*** Page 17 finding that an aggravating circumstance exists beyond a reasonable doubt must be supported by "substantial evidence." It suggests, however, relying on language in the 1980 Miller case, that a trial court may submit an aggravating circumstance to the jury if the State introduces "any evidence, however slight," in support of the aggravating circumstance. The "substantial evidence" standard clearly requires a greater quantum of proof than the "any evidence, however slight" standard. The problem with the majority's suggestion, then, is obvious. A rule allowing a trial court to submit an aggravating circumstance to the jury upon a lower evidentiary threshold, such as "any evidence, however slight," will always result in a reversal if a jury finds the existence of an aggravating circumstance when the evidence [***33] supporting the aggravating circumstance is anything less than "substantial." Thus, if this Court is to apply the "substantial evidence" standard in reviewing the sufficiency of the evidence supporting a jury's finding that an aggravated circumstance exists, then that is the standard that a trial court should apply in determining whether to submit an aggravating circumstance to the jury. For the sake of judicial economy, a trial court should not submit an aggravating circumstance to the jury unless there is substantial evidence, not merely slight evidence, in support of it. [*22] Id., 335 Ark. at , 983 S.W.2d at (Newbern, J., dissenting). The instant case perfectly illustrates the problem recognized by the dissent in Willett. Here, the State was allowed to introduce evidence during sentencing that Appellant committed a prior, violent felony, i.e., the shooting at Casa Torres that constituted an aggravating circumstance. The only evidence to support this was the testimony from Magana-Palma that Appellant told him that he had committed the shooting. This [**252] evidence was contrary to the testimony of two officers that another person, Gonzolo Garcia, identified the shooter (immediately [***34] after the incident) as "Franklin." At the conclusion of the sentencing phase, Appellant argued that the State had failed to specify any particular felony that Appellant allegedly committed and that would satisfy the facts as presented. The court nevertheless suggested the State submit an instruction "as to what is a felony," such as

48 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593, *** Page 18 for "aggravated assault, attempted murder, battery." Ultimately, the circuit court instructed the jury that "[ajggravated assault is a felony" and stated the elements of the crime. This was error, even if it was not prejudicial to Appellant. For purposes of clarity, we will no longer follow the "however slight" standard utilized in Willett and its progeny. The appropriate standard that a circuit court should apply in determining whether to submit an aggravating circumstance to the jury is that of substantial evidence, the same standard employed by an appellate court on review. IV. Admission of Other Evidence Appellant next argues that the circuit court erred in allowing the State to introduce evidence of unrelated bad acts, weapons, and ammunition. Specifically, Appellant argues that [*23] it was error for the circuit court to introduce the testimony of Fayetteville [***35] Police Officer Kenn Willyard that he conducted a traffic stop of Appellant a month before the murder and discovered a loaded.380 magazine clip on his person, as this evidence was not relevant and was more prejudicial than probative. Appellant also argues that it was error for the court to admit a.380 Talon handgun where the gun was never linked to these crimes. Finally, Appellant argues that testimony from Magana-Palma and Edwin Mancia that they had previously lied under oath because they were fearful of Appellant's friends was inadmissible as it was highly inflammatory and prejudicial. The State counters that none of these allegations constitute reversible error as the admission of evidence is within the sound discretion of the circuit court. Rule 404(b) provides that [ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Ark. R. Evid. 404(b) (2011). The admission or rejection of evidence under Rule 404(b) is committed to [***36] the sound discretion of the circuit court, and this court will not reverse absent a showing of manifest abuse of discretion. Camp v. State, 2011 Ark. 155, 381 S.W.3d 11; Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008). It is well settled by this court that testimony of other criminal activity is admissible "if it is independently relevant to the main issue, that is, relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal." Green v. State, 365 Ark. 478, 494, 231 S.W.3d 638, 651 (2006). In other words, the evidence offered under

49 2011 Ark. 515, *; 385 S.W.3d 238, **; 2011 Ark. LEXIS 593, *** Page 19 Rule 404(b) must make the existence of any fact of consequence more or less probable than it would be without the evidence. Id. [*24] When evidence of another crime or wrong reflects consciousness of guilt of the commission of the crime charged, it is independently relevant and admissible under Rule 404(b). E.g., Banks v. State, 2010 Ark. 108,366 S.W.3d341. [**253] Rule 403 provides that "[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, [***37] waste of time, or needless presentation of cumulative evidence." Ark. R. Evid. 403 (2011). This court has noted that evidence offered by the State in a criminal trial is likely to be prejudicial to the defendant to some degree, otherwise it would not be offered. Vance, 2011 Ark. 243, 383 S.W.3d 325; Rounsaville v. State, 2009 Ark. 479, 346 S.W.3d 289. Nevertheless, the evidence should not be excluded under Rule 403 unless the defendant can show that the evidence lacks probative value in view of the risk of unfair prejudice. Rounsaville, 2009 Ark. 479, 346 S.W.3d 289. This court reviews a circuit court's ruling under Rule 403 for an abuse of discretion. Id. First, we review the admissibility of the ammunition clip. Officer Willyard testified that he stopped Appellant for speeding on November 24, 2006, more than a month before the shooting of Jefferson. At that time, Willyard conducted a pat-down search and discovered the loaded.380 clip, which he returned to Appellant at the conclusion of the stop. Appellant argued that it was not admissible as it was not relevant to the murder and robbery of Jefferson and was more prejudicial than probative. But, the circuit court allowed it as evidence [***38] that Appellant had the opportunity to access the same type of ammunition that was later used in the murder of Jefferson. [*25] The circuit court's ruling was based on this court's decision in Banks, 2010 Ark. 108, 366 S.W.3d 341. In that case, this court affirmed the circuit court's admission of a variety of ammunition recovered during a search of a room where the appellant's accomplice was staying. This court ruled that it was admissible as evidence of opportunity, explaining that [tjestimony was presented by the State that twelve 7.62 by 39 shell casings, twenty-two nine-millimeter, and eight.40-caliber shell casings had been collected from the scene of the drive-by shooting, which resulted in Kamya's death. The same, exact types of ammunition were found at Banks's former home, in the bedroom of his half-brother, an alleged accomplice to the shooting. Such was relevant evidence

50 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593, *** Page 20 relating to Banks's and his alleged accomplices' knowledge of those types of ammunition and access thereto. The fact that the exact same types of ammunition used in the shooting were found at the home of Banks and his alleged accomplices was relevant to his or his accomplices' guilt. Id. at 5-6, 366 S.W.3d at 344. Just [***39] as in Banks, the evidence of the gun clip with.380 ammunition was relevant to establish that Appellant had access to the type of ammunition used in Jefferson's murder. Moreover, while this evidence may have been prejudicial to Appellant, its probative value outweighed the danger of unfair prejudice. Accordingly, we cannot say the circuit court abused its discretion in admitting the evidence related to the gun clip. Next, we must look at the admissibility of the gun that police recovered from Edwin Mancia. Mancia told authorities that Appellant contacted him and told him that his co-defendant was in trouble and that he needed Mancia to retrieve a gun from Magana-Galdamez's house. Mancia did as requested but then turned the gun, a.380-caliber handgun, over to authorities. The gun was sent to the State Crime Lab, but the analysts could not conclusively determine that it was the gun that had fired the shot that killed Jefferson. It is the [*26] fact [**254] that the gun could not be tied to the murder that Appellant asserts makes it irrelevant and highly inflammatory. In support of his argument, Appellant cites us to Rush v. State, 238 Ark. 149, 379 S.W.2d 29 (1964), where this court held that a pistol [***40] not linked to the crime was not properly admitted into evidence. In so ruling, this court noted that the very fact that the pistol was admitted into evidence could have had a tendency to confuse the jury, even though the State did not contend it was the murder weapon. The decision in Rush is distinguishable from the instant case. There, ballistics tests confirmed that the gun introduced at trial was not the murder weapon, while the forensic testing on the gun recovered from Mancia was inconclusive. More importantly, the gun in this case was introduced during Mancia's testimony, wherein he stated that Appellant had contacted him and specifically asked him to retrieve the gun, which happened to be the same caliber handgun as that used in the murder, from his accomplice's house. We agree with the State that this evidence demonstrated that it was more probable than not that Appellant had access to a.380-caliber weapon at the time of Jefferson's murder. E.g., Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996) (holding that introduction of bullets and casings known to belong to the defendant were relevant because it made it more probable than not that the defendant had ac-

51 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593,*** Page 21 cess to a.45-caliber [***41] weapon at the time of the murder); see also Banks, 2010 Ark. 108, 366 S.W.3d 341 (allowing admission of these types of ammunition that were the same caliber as that used in a prior murder). This court has also recognized that any circumstance that links a defendant to the crime or raises a possible motive for the crime is [*27] independently relevant and admissible under Rule 404(b). Creed v. State, 372 Ark. 221, 273 S.W.3d 494 (2008). Again, we cannot say that the circuit court abused its discretion in finding that the gun was relevant evidence and that its probative value outweighed the possibility of any unfair prejudice. In any event, Appellant cannot demonstrate prejudice, as the jury was given a proper Rule 404(b) limiting instruction that evidence of other alleged crimes, wrongs, or acts was merely offered as evidence of opportunity, among other things, not as proof of his character. We have observed that a limiting instruction by the court may serve to remove the prejudicial effect of evidence. Williams v. State, 2011 Ark. 432, S.W.3d. Finally, Appellant cannot demonstrate error with regard to the testimony of Mancia and Magana-Palma that they had previously lied under oath [***42] because of fear of Appellant's friends. Appellant opened the door to this testimony when he challenged the credibility of these witnesses by pointing out that they had prior inconsistent statements. An appellant cannot demonstrate prejudice when he opens a door to the testimony in the first place. E.g., Eubanks v. State, 2009 Ark. 170, 303 S.W.3d 450. V. State's Second Mental Evaluation of Appellant Finally, Appellant argues that the circuit court erred in allowing the State to pursue a second mental examination of Appellant after the State's witness, Dr. George Mallory, admitted to scoring errors in his evaluation of Appellant. Further, Appellant asserts that once Dr. Mallory's opinion was discredited, the only evidence remaining for the court to consider was Appellant's expert's opinion that Appellant was mentally retarded and, as such, it was error [*28] for the court to deny his motion to bar the death penalty pursuant to Atkins v. [**255] Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). This error, according to Appellant, was compounded by the fact that the court required him to undergo another State-imposed evaluation in violation of his right to remain silent under both the state and federal constitutions. The [***43] issue of mental retardation was raised by Appellant prior to trial. Appellant retained Dr. Ricardo Weinstein as an expert who then performed several tests on Appellant to determine his IQ. Dr. Weinstein also studied Appellant's history in order to determine whether there was any evidence of adaptive-functioning deficits, which is also necessary to reach a conclusion on the issue of mental retardation.

52 2011 Ark. 515, *; 385 S.W.3d 238, **; 2011 Ark. LEXIS 593,*** Page 22 Testifying for the defense at a pretrial competency hearing, Dr. Weinstein stated that he administered a variety of tests, including tests aimed at determining whether Appellant might be malingering. The results from the three main tests each showed that Appellant has an IQ in a range of 64 to 77, according to Dr. Weinstein. In addition, Dr. Weinstein stated that he traveled to El Salvador, where Appellant resided until he was sixteen years of age, and interviewed various family members, the midwife who delivered Appellant, and school officials who had contact with him. Ultimately, Dr. Weinstein opined that [i]t is my opinion to a high degree of scientific certainty that Mr. Dimas-Martinez fulfills the definition of mental retardation according to DSM-IV-TR and the AAIDD. In addition, he [***44] suffers from significant brain dysfunction with particular compromise to the frontal lobe as a result of which his judgment and impulse control are severely affected. Furthermore, while intoxicated with any mind-altering substance, this condition would be greatly exacerbated. Although Dr. Weinstein opined that Appellant was mildly, mentally retarded, Dr. Weinstein found Appellant competent to stand trial. [*29] Dr. Charles Mallory testified on behalf of the State and stated that he had also administered certain tests and opined that there was no evidence of mental retardation, as Appellant's IQ was not 70 or below and his adaptive function did not support a diagnosis of mental retardation. After this hearing, but before trial, this court handed down the decision in Newman v. State, 2009 Ark. 539, 354 S.W.3d 61, where we noted the following problems with Dr. Mallory's evaluation of Newman: Dr. Mallory acknowledged that the IQ test Dr. Weinstein administered, the Wechsler Adult Intelligence Scale-Ill ("WAIS-III"), is a very reliable test and the most widely used test in the world. However, Dr. Mallory instead administered the Wechsler Abbreviated Scale of Intelligence ("WASI") and the "Kent Test" [***45] to assess Newman's level of cognitive functioning. Newman contends that neither of these tests are appropriate for determining a person's IQ. Dr. Mallory acknowledged that the manual of the WASI specifically states that the instrument should not be used alone to make diagnoses and

53 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593,*** Page 23 should not be used for legal or judicial purposes. In addition, Dr. Mallory acknowledged that the Kent Test was not a commercially available instrument, but a "homemade test that a psychiatrist once passed [him]." Dr. Mallory explained that the Kent Test consisted of ten questions, such as, "What is sand used for?" and "What are the names of some fish?" A person earns points for knowing answers to the questions. Dr. Mallory agreed that the Kent Test had not been shown to have any reliability or validity or to have any ability to accurately predict intellectual [**256] functioning. Nevertheless, Dr. Mallory stated that, on the basis of Newman's score on the Kent Test, Newman had an average intellectual ability and there was no need for further intelligence testing. Dr. Mallory admitted that he made a significant scoring error when he administered the WASI to Newman. Specifically, Dr. Mallory scored Newman's results [***46] using the norms for the wrong age group, erroneously inflating Newman's scores on all subparts of the test. Correctly scored, Newman's verbal IQ score was 80, rather than 84, as Dr. Mallory had reported; Newman's performance IQ score was 72, rather than 77; and his full scale IQ score was 75, not 78. Dr. Mallory indicated that a full-scale IQ score of 75 would necessitate a further investigation of Newman's cognitive function. Dr. Mallory admitted that he "certainly made a big error." [*30] Id. at 8-9, S.W.3d at 2009 Ark. LEXIS 706 at * Because Dr. Mallory's flawed calculations and opinion were the only evidence introduced as to Newman's competency, this court granted him leave to reopen his case to pursue a writ of error coram nobis. After our decision in Newman, Dr. Mallory sent a letter to the circuit court informing it that he had made errors in Appellant's testing as well. Specifically, Dr. Mallory stated that he made a calculation error that resulted in a full scale IQ of Appellant of 80, rather than an 81. But, Dr. Mallory stated that this calculation error did not change his forensic opinion that Appellant was not mentally retarded. Dr. Mallory subsequently changed his opinion, however, and opined [***47] that based on a scientific concept known as the "Flynn Effect," Appellant was borderline mentally retarded. This prompted Appellant to file

54 2011 Ark. 515, *; 385 S.W.3d238, **; 2011 Ark. LEXIS 593,*** Page 24 a "Motion for Continuance and Notice of Intent to Seek Special Sentencing Provision of Mental Retardation Pursuant to Ark. Code Ann " Therein, Appellant stated that he had previously decided not to pursue the mental-retardation issue during sentencing but because of the change in Dr. Mallory's opinion, he now wanted to pursue the issue and to present evidence of mental retardation. A hearing was held in which Dr. Mallory testified about his revised scoring and changed opinion regarding Appellant's IQ. Ultimately, the circuit court denied Appellant's request to reopen the issue of mental retardation. But, a few days later, the State filed a "Motion for Further Evaluation of the Defendant at the Arkansas State Hospital" based on its doubts about Dr. Mallory's qualifications. Appellant opposed the motion on the basis that the State was seeking a second opinion and was trying to "doctor shop." The court granted the motion, and [*31] [***48] Dr. Ron Faupel with the Arkansas State Hospital evaluated Appellant and opined that he was not mentally retarded. Now, in support of his contention that the State should not have been allowed to seek a second opinion, Appellant cites us to King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994). King is distinguishable from the instant case. There, this court ruled that a circuit court did not err in refusing the appellant's request for a second mental evaluation, where the appellant was not satisfied with the initial evaluation. That is not the situation that is presented here. In this instance, the State's only witness as to Appellant's mental retardation was discredited for calculation errors in another case just prior to Appellant's trial. That witness then admitted to calculation errors in this case, and subsequently changed his opinion altogether. Based on these facts, we cannot say that the circuit court erred in granting the State's request [**257] that Appellant undergo a second evaluation at the State Hospital. Moreover, Appellant cannot demonstrate how he was prejudiced by allowing the State to seek the second evaluation. He makes a conclusory statement that the second evaluation violated [***49] his right to remain silent. The problem with this is the fact that it was Appellant who wanted to avail himself of the statutory provision for special sentencing with regard to the mental-retardation issue. He could not avail himself of this provision, but then refuse an evaluation. It is well settled that this court will not presume prejudice, and none has been demonstrated in this instance. Holt v. State, 2011 Ark. 391, S.W.3d [*32] VI. Appellate Review Pursuant to Rule 4-3 (i) and Rule 10 The record in this case has been reviewed for reversible error pursuant to Arkansas Supreme Court Rule 4-3 (i) (2011). We have, in addition, conducted a mandatory review of the record as re-

55 2011 Ark. 515,*; 385 S.W.3d 238, **; 2011 Ark. LEXIS 593,*** Page 25 quired by Rule 10(b) of the Arkansas Rules of Appellate Procedure Criminal and considered (i) pursuant to Rule 4-3 (h) of the Rules of the Supreme Court and Ark. Code Ann (a), whether prejudicial error occurred; (ii) whether the trial court failed in its obligation to bring to the jury's attention a matter essential to its consideration of the death penalty; (iii) whether the trial judge committed prejudicial error about which the defense had no knowledge and therefore no opportunity to object; (iv) whether [***50] the trial court failed in its obligation to intervene without objection to correct a serious error by admonition or declaring a mistrial; (v) whether the trial court erred in failing to take notice of an evidentiary error that affected a substantial right of the defendant; (vi) whether the evidence supports the jury's finding of a statutory aggravating circumstance or circumstances; and (vii) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. Pursuant to this mandatory review, we have found no further errors. Reversed and remanded.

56 .. Mode) Instructions ` Introduction: Serving on a jury is an important and serious responsibility. Part of that respor~sihility is ~o decide the facts of this case using only the evidence that the parties will present in this courtroom. As I will explain further in a moment, this means that I must ask you to do something that may seem strange to you: not to discuss this case or do any research on this case. l will also explain to you why this rule is necessary and what to do if you encounter any problems with it. Communications: During this trial, da not contact anyone associated with this case. If a question arises, direct it to my attention or the attention of my staff. Also, do not discuss this case during the trial with anyone, including any of the attorneys, parties, witnesses, your friends, or rnembers of your family. This includes, but is not limited to, discussing your experience as a juror on this case, the evidence, the lawyers, the parties, the court, your deliberations, your reactions to testimony, exhibits, ar any aspect of tie case or your courtroom experience. "No discussion" extends to all forms of communication, whether in person, in writing, or through electronic devices or media such as: , Facebook, Myspace, Twitter, instant messaging, B1ackBerry messaging, ipads, iphones, itouches, Google, Yahoo!, or any other Internet search engine or form of electronic communication for any purpose whatsoever if it relates to this case. After you retire to deliberate, you may begin to discuss the case with your fellow jurors and only your fellow jurors. I will give you some form of this instruction every time we take a break. I do that not to insult you or

57 because I don't think that you are paying attention. I do it because, in my experience, this is the hardest instruction for jurors to fallow. I know of no other situation in our culture where we ask strangers to sit together watching and listening to something, then go into a little room together and not talk about the one thing they have in common, that which they just watched together. There are at least three reasons for this rule. The first is to help you keep an open mind. When you talk about things, you start to make decisions about them, and it is extremely important that you not male any decisions about this case until you hive heard atl the evidence and all. the rules for making your decisions, and you will. not have heard that until the very end of the trial. The second reason is that, by having conversations in groups of two or three during the trial, you will not remember to repeat all of your thoughts and observations to the rest of your fellow jurors when you deliberate at the end of the trial The third and most important reason is that by discussing the case before deliberations, you increase the likelihood that you will either be influenced by an outside third party or that you will reveal information about the case to a third party. If any person. tries to talk to you about this case, tell that person you cannot discuss the case because you are a juror. If that person persists, simply walk away and report the incident to me or my staff. Research: Do not perform any research or make any independent personal investigations into any facts, individuals, or locations connected with this case. Do not look up or consult any dictionaries or reference materials. Do not search the Internet, Web sites, or blogs. Do not use any of these or any other electronic tools or other sources to obtain information about any facts, individuals, or locations cannectec! with this case. Do not communicate any private or special knowledge about any facts, individuals, or locations connected with this case to your fellow jurors. Do not read ar fisten to any news reports about. this case. The law prohibits a juror from receiving evidence not properly admitted at trial. If you have a question or need additional information, contact me or my staff. I, along with the attorneys, will. review every request. If the information requested is appropriate for you to receive, it will be released in court. In our daily lives, we may be used to looking for information online and we may "Google" things as a matter of routine. Also, in a trial it can be very tempting for jurors to do their own research to make sure they are making the correct decision_ However, the moment you try to gather information about this case or the participants is the moment you contaminate the process and violate your oath. as a juror. Looking for outside information is unfair because the parties do not have the opportunity to refute, explain, or correct what you discovered or relayed.

58 The trial process works through each side knowing exactly what evidence is being considered by you. and what law you are applying to the facts you find. You must resist the temptation to seek outside information for oiir system of jtiistice to work as it should. Once the trial ends and you are dismissed as jurors, you may research. and discuss the case as much as you wish. You may also contact anyone associated with this case. [Questions by the judge to the jury: Are there any of you who cannot or will not abide by these rules concerning communication or research with others in any way during this trial? Are there any of you who da not understand these instructions?] Ramifications: If you communicate with anyone about the case or da outside research during the trial, it could lead to a mistrial, which is a tremendous expense and inconvenience to the parties, the court, and, ultimately, you as taxpayers. Furthermore, you could be held in contempt of court and be subject to punishment such as paying the costs associated with having a new trial. If you find that one of your fellow jurors has conducted improper communications or research or if you conduct improper communications or research, you have a duty to report it to me or my staff so that we can protect the integrity of this trial.

59 2/17/2015 Potter Stewart American Inn of Court February 17, 2015 Circumstances giving rise to spoliation The evidence was within the party s control The evidence was relevant to the claims or defenses in the case Actual suppression, alteration, destruction or withholding of evidence Duty to preserve was reasonably foreseeable to the party 1

60 2/17/2015 Removing photographs Allied Concrete Co. v. Lester, 285 Va. 295, 301 (Va. 2013) Plaintiff in a wrongful death suit deleted 16 photographs from his Facebook account Removing social media comments/posts Painter v. Atwood, 2014 U.S. Dist. LEXIS 35060, *7 (D. NV. 2014) The defendant accused plaintiff and plaintiff s witnesses of deleting Facebook posts that contradicted claims and deposition testimony Deactivating a social media account Abeyta v. City of N.Y., 2014 U.S. App LEXIS (2nd Cir. 2014) Plaintiff deactivated his Facebook account shortly after initiating his lawsuit Dismissal of the case Most severe sanction for spoliation of social media evidence Adverse inference The trier of fact is permitted to infer that the destroyed evidence would have weighed against the party who destroyed the evidence The Sixth Circuit adopted a three prong test for adverse inference. Beaven v. US DOJ, 622 F.3d 540 (6th Cir. 2010) The party having control of the evidence had an obligation to preserve at the time it was destroyed The records were destroyed with a culpable state of mind Destroyed evidence was relevant to a party s claim or defense such that a reasonable trier of fact could find that it would support 2

61 2/17/2015 Monetary sanctions Opposing party s attorney fees related to spoliation issue Punitive damages Party must prove actual malice in Ohio. Hodesh v. Korelitz, 2008 Ohio 2052, 2008 WL at *13 (1st D. Hamilton, May 2, 2008) Disciplinary actions under State Rules of Professional Conduct Facts of Allied Concrete Co. v. Lester, 285 Va. 295, 301 (Va. 2013) Lester sued Allied Concrete for the wrongful death of his spouse Lester posted on Facebook photos of himself holding a beer can and wearing a T-shirt that said I hot moms Discovery request for all Facebook info served on Lester s attorney Attorney instructed Lester to clean-up his Facebook page Lester deleted 16 photos from his Facebook page Lester deactivated his Facebook page Lester s attorney signed an answer to the discovery request Answer to discover request stated Lester never had a Facebook page 3

62 2/17/2015 Defendant lost and filed a post-trial motions for a new trial, dismissal of the claims, and sanctions against Lester and his attorney, among others. What was the result? [[Include instruction for responding here]] Motion for a new trial was denied and affirmed Motion for dismissal of the claims was denied and not appealed Sanctions were granted and affirmed Murray the attorney sanctioned $542,000 Lester the plaintiff sanctioned $180,000 The Virginia State Bar ultimately suspended Murray s law license for 5 years following a disciplinary proceeding. 4

63 2/17/2015 Ohio no ethics opinions on the subject New York County Lawyers Association Ethics Opinion 745 (2013) There is no ethical restraint in advising a client to use the highest level of privacy/security settings. A lawyer can review information a client intends to post and provide appropriate guidance No ethical bar to taking down information as long as the information is preserved (on users computer or in cyberspace) and taking it down does not violate substantive laws on spoliation/destruction of evidence Philadelphia Bar Assoc. Professional Guidance Committee Opinion (2014) Ok to advise a client to change privacy/security settings may not instruct or permit the client to delete/destroy a relevant photo, link, or other content, so that it no longer exists. North Carolina State Bar Proposed Formal Ethics Opinion 5 (2014) An attorney may instruct a client to remove information as long as removal does not: constitute spoliation; violate a court order; or is otherwise illegal However, the opinion cautions that attorneys may want to preserve an electronic or hard copy of the information Florida Bar Draft Proposed Advisory Opinion (2014) Attorney may advise client to change privacy settings Information may be removed as long as a copy is preserved and removal does not violate substantive law 5

64 2/17/2015 An attorney can advise a client to change privacy/security settings on social media accounts. An attorney can review information that a client intends to post and provide guidance on whether or not to post Avoid advising a client to remove information If the client does remove information, advise the client to retain a copy Never sign an answer to a discovery request that includes a false statement Questions? 6