By Peter Hall
The Morning Call
ALLENTOWN, Pa. — In an age when social media are a near-constant presence in many people’s lives, judges and lawyers are increasingly on guard against the status update that could sink a case.
Jurors, who are chosen for their impartiality, have long been instructed to avoid discussing or reading reports about the cases they’re assigned to decide. Judges deliver that warning to help jurors avoid learning things that might improperly influence their votes.
But the temptation to share and discuss on Facebook or Twitter the novel or even frustrating experience of jury service has created a new threat to the fairness of a trial by jury.
Lawyers have long assumed that jurors would discuss cases with their spouses and families at the end of the day, criminal defense attorney Gerald Grimaud said.
“There’s a certain amount of that that’s not discoverable and there’s not much you can do about it,” Grimaud said.
With the rise of the Internet, judges and lawyers became aware that jurors had a means to easily investigate people or companies in a case, the locations of crimes and the law itself. Courts added admonitions against independent research to their jury instructions.
“With social media, one of the challenges that differentiates it from talking to a spouse and Internet research is that people are so addicted to constant streaming of information, they don’t even know how to detach themselves,” said Drexel University law professor Daniel Filler, an expert on juries and criminal law.
A post announcing that a person was selected for a jury, or complaining that he or she will miss a week of work can invite a response that might subtly influence a juror’s view of the case, Filler said.
Last week, a federal appeals court instructed federal judges in Connecticut, New York and Vermont to deliver daily instructions to jurors not to communicate with anyone about the case using social media sites including Facebook, Myspace, LinkedIn or YouTube after a juror was found to have posted status updates about his jury service in a tax evasion case.
“Jury duty 2morrow. I may get 2 hang someone ... can’t wait,” the juror, who was not identified, posted on his Facebook wall.
The post drew responses from his Facebook friends, according to the court’s opinion.
"[G]ettem while the’re young !!!...lol” and “let’s not be to hasty. Torcher first, then hang! Lol,” a friend replied.
Although the court threw out the guilty verdict on other grounds, it found the juror’s Facebook posts had not violated the defendant’s right to a trial by an impartial jury.
However, the court took the opportunity to reinforce the importance of reminding jurors of their duty to remain impartial and wrote that reminding jurors not to discuss the case on social media at the start of the trial alone, was not enough.
A similar problem arose during the 2009 trial of former Pennsylvania state Sen. Vincent Fumo when a television station covering the trial discovered that one of the jurors had repeatedly posted about the case on Facebook and Twitter.
When the juror saw the news report about his social media activity, he panicked and deleted the posts, according to a court opinion in Fumo’s case. Fumo moved to have the juror disqualified, and the court questioned the juror about both his social media activities and his general media consumption.
The court denied Fumo’s motion, writing that although the posts violated the instruction not to discuss the case, they were “nothing more than harmless ramblings having no prejudicial effect. They were so vague as to be virtually meaningless.”
On appeal, the U.S. 3rd Circuit Court of Appeals affirmed Fumo’s conviction, but Circuit Judge Richard Nygaard wrote a separate opinion in which he highlighted the potential of social media to skew the fairness of jury trials.
“The availability of the Internet and the abiding presence of social networking now dwarf the previously held concern that a juror may be exposed to a newspaper article or television program,” Nygaard wrote. “The days of simply instructing a jury to avoid reading the newspaper or watching television are over. Courts must be more aggressive in enforcing their admonitions.”
Locally, there haven’t been any cases in which a juror’s use of social media has created a problem, court officials said.
A love-struck witness, however, caused a stir in the Northampton County trial of a mother accused of leaving her baby to die in a sports bar toilet when he attempted to contact a juror through the Internet classifieds service Craigslist.
It didn’t affect the outcome of the trial, in which Amanda Hein of Allentown was convicted of first-degree murder and sentenced to life in prison.
In both Lehigh and Northampton county courts, judges deliver a standard jury instruction that includes a warning not to communicate about the case with anyone by any means, including social media.
“I think the best we can do is impress upon the jurors how important it is that the case be decided based upon the evidence presented at trial and not to discuss the case with outside sources including the Internet,” Northampton County President Judge Stephen Baratta said.
While there is no statewide rule in Pennsylvania, the state Supreme Court’s civil and criminal rules committees are preparing a proposed policy on social media use by jurors. The proposal is likely to be submitted to the court for consideration this summer, Administrative Office of the Pennsylvania Courts spokesman Art Heinz said.
Last month, the American Bar Association adopted a formal opinion that gives lawyers the OK to review a juror’s social media presence before or during a trial and requires them to report any criminal or unethical activity to the court.
The potential for social media to influence a juror is significant, said Grimaud, a member of the Civil and Equal Rights Committee of the Pennsylvania Bar Association.
Simply sharing that that you have been selected for a jury invites queries from friends about the subject of the case. If the juror replies with information about the case, his or her friends might discover they know the defendant, a victim or a witness, Grimaud said.
“It is probable that exchange will influence that juror,” he said. “A juror is like anyone else, they like to please their friends and they might want to find in favor of their friends and their contacts.”
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