Posted: 5:00 a.m. Monday, Oct. 8, 2012

Social media posts admissible in court

By Denise G. Callahan

What you say on Facebook can be used against you in a court of law.

Whether it’s a divorce proceeding or criminal trial, posts on social networking sites such as Facebook, MySpace, Twitter and Skype are regularly popping up as evidence in courtrooms locally and across the country. Ian Friedman, past president of the Ohio Association of Criminal Defense Attorneys, said social media evidence has become a critical element in an increasing number of court cases.

“In many cases, searching people’s social networking, combing though some of what they’ve shared with the rest of the world, is almost the first place we look anymore,” Friedman said. “I personally have been involved in several trials where credibility was completely lost in a matter of seconds when the witness was presented with something inconsistent they had written in the past.”

Butler County Prosecutor Mike Gmoser recently used photos and posts from the Facebook page of a Fairfield Twp. teenager accused of murder to show a jury that the boy liked violence. Gmoser showed Facebook pictures of 18-year-old Lance Tiernan wearing a T-shirt with brass knuckles and a notation on his page that he “likes” the movie “Fight Club.”

“Once you put something out on the Internet, it’s there forever,” said Hamilton Police Lt. Carl Sigmon. You need to be careful about what you actually put on the Internet because you never know where it’s going to wind up.”

Warren County Prosecutor David Fornshell said he has to not only be concerned with the accused person’s social media posts, but also with the Internet activity of victims and other witnesses. Failure of investigators to perform due diligence with Facebook and other sites could result in being blindsided at trial, he said.

“We need to verify, through whatever access we’re able to obtain through social media, there’s nothing out there that is going to be damaging to our case,” Fornshell said. “A lot of times we have cases that come down to the credibility of one person versus another person.”

Lawyers involved in civil litigation are also scouring through posts on social networking sites, said Fornshell, a former civil attorney. A plaintiff in a slip-and-fall personal injury case seen dancing on an Internet video could torpedo the case, he said.

Tiernan’s attorney Charlie M. Rittgers said if his client hadn’t taken the stand, Gmoser probably couldn’t have shown the on-line the posts. But since Tiernan didn’t deny the page was his, the postings were fair game. Rittgers said denying ownership would have been a mistake.

“If Lance had said, ‘I never posted that,’ that would be the end of it, and it wouldn’t have been admitted as a piece of evidence,” Rittgers said. “But obviously the jurors would have said, ‘That’s a picture of you with the brass knuckles.’ The bell would have already been rung. They wouldn’t even have to look at the exhibit, and the fact that Lance would deny something like that would make Lance look less credible.”

But not all witnesses admit they are the owners of pictures or words on the Internet, which poses a problem for those who want to show it to a jury or a judge. The Internet website Forensic Focus posted a study by a lawyer who pulled up almost 700 appeals cases, nationwide, where social media was at least part of the disagreement over a trial court outcome. The appeals were over a two-year period, and Ohio appellate courts dealt with at least a couple dozen of the cases.

John Patzakis, the study’s author, wrote the cases he was able to locate are likely just the tip of the iceberg — since only a small percentage of all appellate decisions are published on-line. And he estimates “several, if not tens of thousands,” of cases involving social media are out there.

That fact worries Ohio Supreme Court Justice Judith Lanzinger, who once said courts are in the “wild, wild west” in terms of dealing with new technology. Lanzinger said the court needs to find ways to deal with emerging technology, particularly with the ability to doctor photos and create fake accounts on some social networking platforms.

“The law evolves and we have to try to keep up with what’s happening,” she said. “Sometimes it’s difficult. The courts sometimes have a quill pen mentality. Until we’re forced to make changes, we don’t do it. The courts are going to have to keep up and anticipate issues before they arise.”

Taking a look at how the current rules of evidence apply to these new forms of evidence will take time, but might be a good start, she said.

“We always want to make sure what is being offered is relevant evidence, that it’s authentic,” Lanzinger said. “Because that’s what the jurors are going to determine the fate of the parties on.”

Ohio Public Defender Tim Young said he thinks the rules of evidence are “adequate,” but they could use better subpoena authority over the social media companies who hold the key to authenticating evidence.

“The social media companies are less than cooperative in court matters, that’s the problem,” Young said. “Most of the time people posting on Facebook are themselves doing the posting, so it’s rare that’s the problem. It’s getting the company to provide access to the user data so you can prove that’s the person. Facebook is not an Ohio company, so getting a Facebook representative to turn over information is where the difficulty arises.”

Friedman said Facebook has gotten better at cooperating with requests for authentication.

Fred Wolens, with Facebook Policy Communications, said he couldn’t comment on criticisms of their willingness to help with legal issues, but he did send a copy of their operational requirements for record seekers. The requirements state Facebook “does not provide expert testimony.”

Traditionally, with evidence like phone records and the like, the rules call for the keeper records to come to court to authenticate the evidence. Gmoser said Facebook records would be treated the same. He used the Baltimore Street Gang murder trial of Anthony Blake as an example.

“With Anthony Blake, there was an awful lot of texting that went on between him and his fellow gang members, with respect to disposing of evidence and hiding witnesses and things of that nature, or compelling people not to testify,” he said. “Josh Muennich did an outstanding job of bringing together the text messages and the people necessary to prove up the text messages. The same rules would apply if there was a Facebook account someone was chattering on.”

Butler County Judge Keith Spaeth hasn’t presided over a case yet that involves social media evidence, and he is not sure what he’ll do when he does. He did, however, draw a distinction between written posts and picture posts.

Spaeth said a written post would have to be properly verified and tied to the person in question. As an example, he said there are five cell phones in his family, all under his name. Spaeth said someone else could pick up his phone and post something, but how can you prove it wasn’t him?

Pictures, Spaeth said, are another matter.

“I think a picture is self-authenticating,” he said. “Now if the defendant is sitting there (on a Facebook post) with a gun and a knife, then that speaks for itself…. Absent some evidence this photo was not doctored or electronically modified, there is a good chance I’m going to let that in.”

Butler County Judge Patricia Oney says she has had a number of cases involving computers, but she hasn’t encountered a Facebook issue yet. She said as long as search warrants are appropriately obtained, the evidence comes in and people should expect that.

“When you put something out there on Facebook, it’s out there and your reasonable expectation of privacy is compromised,” she said “While you hope your friends are not putting it out there with other people, they probably are, especially among young people..”

Friedman said the whole issue of being “friends” with people on social media is also an issue to be concerned about. He said he teaches continuing legal education classes where he cautions lawyers they can’t try to coax information out of victims or others by acting as a counterfeit friend. Friedman has, however, encountered family members of a client who might already be friends with the victim or their friends, who offer to dig up dirt.

“Even if they may have had access before, now it’s for a different purpose,” he said. “Is there inherent dishonesty there? I think it’s a minefield of ethical dilemmas.”


Social media appeals by platform

MySpace 315 cases

Facebook 304 cases

LinkedIn 39 cases

Twitter 30 cases

Foursquare 1 case

Total 689 cases

 
 

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