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Univ. of South Carolina School of Law

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Wednesday, September 26, 2012

Friendship Request: Supreme Court Of Kentucky Finds Jurors Being Facebook "Friends" With Victim's Mother Not Per Se Prejudicial

A defendant is charged with murder and related crimes. While the jury is being selected, two prospective jurors indicate that they do not know the victim, her family, or the circumstances of the case. After the jury convicts the defendant of the crimes charged, it is revealed that the jurors were in fact Facebook "friends" with the victim's mother during the defendant's trial (despite one of the jurors denying that she even had a Facebook account). What should the court do? Let's look at the recent opinion of the Supreme Court of Kentucky in Sluss v. Commonwealth, 2012 WL 4243650 (Ky. 2012).

In Sluss, the facts were as stated above, with Ross Sluss being convicted of the murder of Destiny Brewer. In his appeal, Sluss claimed, inter alia,

that the mere fact that each juror was a "Facebook friend" with April Brewer [Destiny's mother] creates a presumption of juror bias and should have been disclosed during voir dire.

In response, the Supreme Court of Kentucky acknowledged that

Websites such as Facebook do require a member to affirmatively approve or deny requests to enter into a "friendship." Therefore, in order for the jurors to become "friends" with April Brewer, either April Brewer would have been required to approve friendship requests from the jurors, or the jurors would have been required to approve requests from April Brewer. In either situation, the "friendship" that the jurors had with April was not happenstance; there was an affirmative act to connect the parties.

That said, the court then noted that

"friendships" on Facebook and other similar social networking websites do not necessarily carry the same weight as true friendships or relationships in the community, which are generally the concern during voir dire. The degree of relationship between Facebook "friends" varies greatly, from passing acquaintanceships and distant relatives to close friends and family. The mere status of being a "friend" on Facebook does not reflect this nuance and fails to reveal where in the spectrum of acquaintanceship the relationship actually falls. Facebook allows only one binary choice between two individuals where they either are "friends" or are not "friends," with no status in between.  

Indeed, some people have thousands of Facebook "friends," as was the case with April Brewer, which suggests that many of those relationships are at most passing acquaintanceships. This is further complicated by the fact that a person can become "friends" with people to whom the person has no actual connection, such as celebrities and politicians. See, e.g., Robbie Woliver, Lady Gaga and her 10 million Facebook friends: celebrity worship syndrome, Psychology Today (July 3, 2010), http://www.psychologytoday.com/blog/alphabet-kids/201007/lady-gaga-and-her-10-million-facebook-friends-celebrity-worship-syndrome (noting that the singer Lady Gaga has “10 million Facebook friends [who] aren't really her friends”). Thus, a Facebook member may be "friends" with someone in a strictly artificial sense.  

At the time Appellant discovered that jurors Matthews and Sparkman–Haney were April Brewer's "friends," Ms. Brewer had nearly two-thousand "friends" on the website. In a small community in a relatively small county such as Martin County (which has a population of about 13,000), it would not be uncommon for someone to know, to some degree, most of the people in the community, many of whom are members of Facebook, the largest social networking website on the internet with more than 900 million users worldwide.

Accordingly, the court concluded that

a juror who is a "Facebook friend" with a family member of a victim, standing alone, is arguably not enough evidence to presume juror bias sufficient to require a new trial. As with every other instance where a juror knows or is acquainted with someone closely tied to a case, it is the extent of the interaction and the scope of the relationship that is the relevant inquiry.

Therefore, the "pivotal question...bec[a]me[] whether the jurors' "friends" status with April Brewer, when combined with their apparently untruthful answer to the court's question about whether they knew the victims or their family, was sufficient juror misconduct to support a new trial." Ultimately, the court found that it did not have enough information to answer this question and thus remanded to the trial court for a post-trial hearing to examine the issue.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/09/facebook-sluss-v-com-sw3d-2012-wl-4243650ky2012.html

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