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Courts Wrestle With Social Media's Impact on Jurors

EBENSBURG, Pa. -- How does a judge keep jurors from posting information about a trial on social media?

Cambria County President Judge Timothy Creany is wrestling with that emerging concern after two jurors were dismissed from a Lackawanna County homicide trial for mentioning their involvement on Facebook.

"Things have changed," Creany said. "This is something we need to look at."

The rules are specific and clear, said Cambria Judge Norman Krumenacker.

Jurors are told they are not to talk about the cases they are hearing and they are not to read, listen to or search for information about the proceedings.

But is that enough?

The American Bar Association recently said it is ethical for lawyers to explore the social-media activity of potential jurors, including during a trial. The Associated Press reported that lawyers are free to scan social media to help determine the opinions of would-be jurors, or whether those jurors disobey orders to refrain from posting while proceedings are ongoing.

The AP noted that juror social media activity has impacted "many legal proceedings over the years."

The bar's position followed a two-year study of court activities being disrupted by jurors' Facebook posts, blog statements and tweets.

For counties, the question is: Who is responsible for policing social media?

"Maybe it's something that could be done by the (information technology) department, I don't know," Krumenacker said.

Checking up on the Facebook or Twitter activity of jurors would be a burden, said an Altoona-based defense attorney with clients in Cambria County.

"Who would have the time to do that?" Thomas Dickey said. "Lawyers and their clients, I don't know."

Cambria County Public Defender Ryan Gleason said people understand what the judge is saying when they are instructed to do no investigations on their own, to not visit a crime scene or look for information on the Internet.

"When the judge comes into court and instructs them to not communicate on any aspect of the case, even to their loved ones, I would presume 99 percent of them are complying," Gleason said.

He described jury duty as putting a person "in a shell."

But the technology is here to stay, said Richard Gabriel, president of Decision Analysis Inc., a national trial consulting firm and a leader in the field of jury research and authority of the recently released "Acquittal," a nonfiction look at high-profile cases with which he's been involved.

"There needs to be more discussion on this. There needs to be more clarity," Gabriel said in a telephone interview from his California office.

"We need to embrace how people think (and use) their phones and (tablets). They use them constantly."

Gabriel said judges need to be clear that the rules extend to social media, and jurors "need to be told why it matters that they get their information only from both sides in the courtroom."

Gleason said jurors who post information on social media about their experiences would do so regardless of instructions from a judge.

"Believe me, it's because they are doing it on their own," Gleason said. "It's not because the judge is being vague."

The American Bar Association did admonish its members to avoid "following" or "friending" jurors, Dickey noted.

Social media sites often express opinions and potential bias, factors that could help determine a person's state of mind, even before an individual is picked for jury duty, he said.

"Facebook is a treasure trove of information for lawyers, and for law enforcement as well," Dickey said. "People post pictures of themselves with guns in their waistbands and large amounts of drugs. Or maybe they go by the name 'Super Arian.' "

Such information might not be available when someone is sitting in a courtroom as a potential juror, he said.

The ABA positions make sense, Gabriel said.

"The Internet is a public forum," he said, "and you make your information and pictures available to the public."

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Kathy Mellott covers the Cambria County Courthouse for The Tribune-Democrat. Follow her on Twitter at twitter.com/kathymellotttd.

Copyright 2014 - The Tribune-Democrat, Johnstown, Pa.

McClatchy-Tribune News Service

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