What Is the Kentucky Supreme Court’s Position on the Use of Social Media by Jurors? By Nicholas M Nighswander

Earlier this year in our February 23rd newsletter, we discussed a local Cincinnati, Ohio divorce case about a rant on Facebook by the ex-husband and the Court’s requirement that he post an apology to his ex-wife on the site.

In a case of first impression in Kentucky in the Commonwealth vs. Ross Brandon Sluss, ___ S.W.3rd ____, rendered September 20, 2012 to be published, the Kentucky Supreme Court weighed in on the topic of social media sites like Facebook and its effect on jury selection in a murder case.

After a jury trial, Mr. Sluss was convicted of murder, assault, tampering with evidence and driving under the influence for causing a collision in June, 2010 while driving his Ford F-150 pick up truck and running into an SUV. The SUV was carrying other passengers including an eleven year old girl who died from the crash. Mr. Sluss was given a life sentence.

A blood test of Mr. Sluss revealed no more than therapeutic levels of several prescription drugs, among which were Xanax, Oxycontin, and Lortab under their generic terms. Mr. Sluss also admitted at the crash scene to smoking marijuana earlier in the day prior to driving. He thereafter was arrested and indicted for first degree murder among the other charges mentioned above including being a persistent felony offender.

As a result of the inflammatory nature of the facts of the case and the death of the child, the case received substantial publicity. The mother of the deceased child also set up a Facebook page about the case.
Mr. Sluss raised 16 issues on appeal. The Kentucky Supreme Court narrowed it to two for purposes of this initial appeal. The first issue addressed Mr. Sluss’ motion for a directed verdict on the murder charge due to only therapeutic levels of prescription drugs. The denial of his motion by the trial court was upheld on appeal under the “totality of the circumstances” test, which is a legal standard for another day and letter.

The second issue was much more troubling to the Court and is the focus of this letter today. It involved Facebook and jurors “friending” the mother of the little girl prior to or during the trial and whether Mr. Sluss was given a fair and impartial jury to try him on the charges as a result of the use of the Facebook social media site.

During voir dire, the questioning of potential jurors at the beginning of the case, it appears at least two jurors did not answer completely or truthfully about their use of Facebook and their knowledge of the mother’s Facebook page about the case and her daughter. One of them turned out to be the foreperson of the jury. However, this information was not learned until after the verdict, which creates a problem for lawyers under existing Kentucky law in contacting jurors after a trial or investigating juror bias before and during trial.

In a thorough analysis of the law and the facts in this case, Justice Noble, on behalf of the Court, opined that Mr. Sluss was entitled to a further hearing within 60 days of the date of the decision to investigate juror misconduct from which the trial court was to enter additional findings of fact and conclusions of law. The Court remanded the case back to the trial court for that hearing. The trial court was granted wide discretion to find out when the jurors “friended” the deceased child’s mother, the nature and extent of the friending, and anything else the trial court deemed relevant to the inquiry. The trial court’s decision on the hearing will be appealable for Mr. Sluss.

In its decision, the Kentucky Supreme Court adopted the State of New York’s professional ethics rule to guide Kentucky attorneys as to when they can review social media site(s) for juror bias in order to impanel a fair and impartial jury.
A full text of the Kentucky Supreme Court’s Opinion can be found at:

http://opinions.kycourts.net/sc/2011-SC-000318-MR.pdf

This case is not yet final and cannot be cited as authority until then.
Know your rights and stay within the law.
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About Our Law Firm
Nicholas M Nighswander PLLC Attorney at Law was established to help clients with their personal legal problems. We do not represent big businesses and corporations. Your legal problem is our problem and we want to have a positive impact with you in doing the best to solve it.
Nicholas M Nighswander PLLC Attorney at Law
(859) 746-1259
e-mail address: nicklaw@fuse.net

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