Last week, I discussed researching jurors via social media. Another area that lawyers may consider using social media for is to locate and/or research potential witnesses in a case. Some of the same concepts that apply to jurors apply to witnesses, but lawyers are not per se prohibited from actually communicating with witnesses, as they are with jurors.
Below are some general guidelines to keep in mind:
- You may review a public portions of social media sites of an unrepresented person or witness. (e.g., New York; Colorado)
- You may communicate with an unrepresented person or witness and also request permission to view a restricted portion of the person’s social media profile. (e.g., New Hampshire; Oregon)
- You cannot use deception. You must use your full name and an accurate profile, and may not create a different or false profile to hide your identity. In most jurisdictions, you probably must also state your purpose for the request. (e.g., Philadelphia; New York; Colorado; New Hampshire)
- If the unrepresented person or witness asks for additional information in response to a communication or access request, you must accurately provide the information requested or stop all further communications and withdraw the request if applicable. (e.g., Oregon)
- If you know the person or witness to be represented by counsel, you may not request permission to view a restricted portion of a social media profile or website, without obtaining consent from that counsel. (e.g., Colorado)