Sluss v. Commonwealth, 381 S.W.3d 215 (Ky., 2012)

The shortcomings of Appellant’s motion, however, are understandable. Whether being a person’s Facebook “friend” standing alone can disqualify a juror is a question this Court has not been called upon to answer, nor has the Court previously considered the impact of an online “friendship” between a juror and someone closely involved in a criminal case. More broadly, it is the first time that the Court has been asked to address counsel’s investigation of jurors by use of social media. Without precedential guidance, Appellant’s failure to demonstrate in his motion for a new trial why this evidence could not be discovered prior to the verdict is excusable since there was little reason for him to think he needed to investigate a juror’s Facebook account or that he even could have done so ethically given the state of the law at the time of trial. Moreover, Appellant was not on notice that such an investigation was necessary on the basis of Virginia Matthews’ unequivocal denial that she was a member of Facebook, and both jurors’ failure to state that they knew April Brewer.

There is further an unsettled question about the extent to which counsel for a criminal defendant may investigate jurors during or after trial.11 The question generally

[381 S.W.3d 227]

involves whether the attorney engaged in inappropriate “communications” with a juror, such as adding the juror as a “friend” on Facebook directly through his own account or through a form of deception, or whether the information was truly public. If the information about a juror is available to the public on a social media site, ethics opinions from other jurisdictions suggest that counsel may investigate that information. See, e.g., N.Y. Cnty. Lawyers Ass’n Comm. on Prof’l Ethics, Formal Op. 743 (May 18, 2011), available at http:// www. nycla. org/ site Files/ Publications/ Publications 1450_ 0. pdf. Given many attorneys’ unfamiliarity with the minutiae of social media, it is not unreasonable for an attorney to be cautious as to his conduct while investigating jurors during the trial.

In fact, there is evidence that, while the practice of conducting intensive internet vetting of potential jurors is becoming more commonplace, “lawyers are skittish about discussing the practice, in part because court rules on the subject are murky or nonexistent in most jurisdictions.” Brian Grow, Internet v. Courts: Googling for the Perfect Juror, Reuters (Feb. 17, 2011), http:// us. mobile. reuters. com/ article/ technology News/ id USTRE 71 G 4 VW 20110217.

Here, in order to discover the evidence in the present case, Appellant would have had to gain access to April Brewer’s list of friends, which might or might not be private,12 and then to access the two jurors’ information to verify their identities. While much of this information is likely public, a reasonable attorney without guidance may not think this investigatory tactic appropriate, and it is still such a new line of inquiry that many attorneys who themselves are not yet savvy about social media may never even have thought of such inquiry.

In 2011, the New York County Lawyers Association’s Committee on Professional Ethics examined whether, under New York’s professional conduct rule governing communications between a lawyer and a juror or member of the jury venire, N.Y. R. Profl Conduct 3.5, a lawyer is permitted, “[a]fter voir dire is completed and the trial commences, … [to] routinely conduct ongoing research on a juror on Twitter, Facebook and other social networking sites.” N.Y. Cnty. Lawyers Ass’n Comm. on Prof’l Ethics, Formal Op. 743 (May 18, 2011). The Committee’s ethics opinion, mirroring the ethics rule, differentiates between conduct that is permissible during the pretrial phase and conduct that is permissible during the evidentiary and deliberation phases. The committee concluded:

It is proper and ethical under [Rule of Professional Conduct] 3.5 for a lawyer to undertake a pretrial search of a prospective juror’s social networking site, provided that 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

[381 S.W.3d 228]

of a juror but must not “friend” the juror, email, send tweets to the juror or otherwise communicate in any way with the juror or act in any way by which the juror becomes aware of the monitoring. Moreover, the lawyer may not make any representations or engage in deceit, directly or indirectly, in reviewing juror social networking sites.

Id. Moreover, the opinion sets forth the proper procedure for the lawyer to report jury misconduct if such misconduct is discovered:

Gwen Billingsley

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