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Bar association backs use of Facebook

The American Bar Association in recent months said it’s ethical for attorneys to view social media for information regarding potential jurors or possible misconduct of sitting jurors, although the decree comes long after the practice began.

The ABA Standing Committee on Ethics and Professional Responsibility issued the opinion in April, saying attorneys are permitted to “passively” view social media, but prohibited from “following” or “friending” jurors or in any other way request access to private areas of a juror’s social media.

Sebastian County Prosecuting Attorney Dan Shue said his office has viewed public Facebook postings for potential jurors for several years as part of trial preparation, noting as the ABA does, it is “public information” unless the user has made it private.

But the information also has its limitations and is “way down on the list” of things done in preparation for choosing a jury, Shue said.

The ABA opinion also allows for viewing on LinkedIn profiles, despite a feature of the service that allows a site member to see who has viewed his or her profile.

The Association of the Bar of the City of New York Committee on Professional Ethics in 2012 issued an opinion in contradiction of the ABA position on such contact, determining it constitutes communication between an attorney and juror.

Attorneys are strictly prohibited by rules of professional conduct from communicating with jurors before or during trials, absent a court order.

Shue sides with the New York Committee regarding viewing of LinkedIn, or other electronic social media, that allows users to see who’s viewed their profile.

Shue said it could have a chilling effect if someone sees a prosecutor is viewing his or her information and potential influence a juror, something strictly prohibited by rules of professional conduct.

Crawford County Prosecuting Attorney Marc McCune said his office hasn’t researched social media for potential jurors, but can’t say he never would. He said his office has looked at social media of potential witnesses and defendants.

During the 2010 sentencing of Steven Ross, 23, who was convicted of negligent homicide and second-degree battery by a Crawford County jury, prosecutors introduced a photo from Ross’ Facebook account of him with a beer in his hand posing with a friend, posted after Ross caused the death of Richard Kalesh, 52, in a traffic accident when Ross was driving under the influence of Xanax.

Ross was sentenced to 26 years in prison and is eligible for parole in September 2016.

Sebastian County Chief Public Defender Dan Stewart said he’s not aware of his deputies researching information on social media for jurors and he hasn’t done it, but like McCune uses it to research witnesses and has found useful information.

“People post anything on social media; they post things I wouldn’t dream of posting,” Stewart said.

The ABA opinion notes that despite its opinion, some state and local bar associations have issued more limiting opinions, and judges in individual jurisdictions have prohibited the practice, which should be the guiding authority for those attorneys.

Sebastian County Circuit Court Judge Stephen Tabor said viewing information people make publicly available, in his opinion, is permissible, but any type of contact or attempt to contact a juror is extrajudicial contact and strictly prohibited.

“There’s a big difference between viewing and communicating,” Tabor said.

Tabor added that social media postings have never been raised during jury selection in any trial over which he’s presided.

Shue said he’s not aware of it ever being raised by deputies in his office, and isn’t sure viewing social media for potential jurors is extremely useful, but it is part of exercising due diligence in trial preparation.

Ultimately though, it comes down to accepting jurors take it seriously when they swear to be fair and impartial jurors, Shue said.

The Arkansas Bar Association has taken no position on the issue, according to an email from Executive Director Karen Hutchins.

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