American Bar Association gives lawyers OK to scan jurors' social media

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By now, most people know that anything posted on social media is subject to scrutiny by dates, parents, schools, employers and potential employers. Anecdotes abound of people who lost out on a job opportunity because of ill-advised spring break photos on Facebook or a tweet that lacked tact and sensitivity.

Now, a new American Bar Association decision says lawyers are permitted to examine the publicly available information that jurors and potential jurors post to social media sites.

The ABA warns against following or friending jurors, however, and cautions that private Internet postings are still off-limits.

“At first glance, I thought, ‘‍This is offensive and intrusive,’‍ but when you think about it legally, rationally, when people choose to post online, they relinquish the expectation of privacy of the information they post,” said Pittsburgh criminal defense attorney Robert Del Greco, of Downtown law firm Dickie McCamey & Chilcote.

Mr. Del Greco said, for instance, comments about the death penalty on the Facebook page of a juror on a potential death penalty case are ”fair game” and could contribute to the juror being disqualified or removed.

Though judges universally admonish jurors to refrain from discussing trials on social media, this in the first time the American Bar Association has addressed how deeply attorneys, their investigators and consultants may probe for information that might signal leanings of potential jurors or unearth juror misconduct during trials.

Jurors’ online postings have disrupted many legal proceedings over the years, causing mistrials and special hearings about the effects of Facebook musings, tweets and blog posts about their trial experiences.

Lawyers and judges also have been wrangling over how far attorneys may go in assembling a jury with help from online research of jurors' social media habits.

Pennsylvania does not have a statewide rule against social media use by jurors, and Pennsylvania Bar Association spokesman Jeff Gingerich said the group hasn’‍t yet taken a position on the ABA decision.

The state had one of the higher-profile recent cases of a juror’s social media use during trial.

During the 2009 trial of then-state Sen. Vincent Fumo, a juror made comments on Facebook and Twitter, which Mr. Fumo’s attorneys claimed created substantial prejudice.

They unsuccessfully petitioned for a new trial, but the Third Circuit agreed with the District Court decision that the juror’s posts were “nothing more than harmless ramblings having no prejudicial effect.”

Mr. Del Greco said the expectation of privacy when posting to a public social media site is the same as that while standing in your home in front of a window that offers a clear view from the outside.

“If you’re worried about being seen, you draw the drapes.”

He said the pervasiveness of social media is creating public profiles whether users realize it or not.

“I joke to my kids that, in a few years, no one will be able to be president because of all the nonsense and juvenile postings they made on social media when they were between 15 and 25,” he said.


Kim Lyons: klyons@post-gazette.com, 412-263-1241 or on Twitter @SocialKimly. The Associated Press contributed.

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