From the President: New Media Creates New Opportunities for Evidence

by Jennifer Little

In today’s growing technological world, a big question arises: how is the legal system responding? As the use of new technology increases, attorneys must educate themselves about the impact of that technology on how we live and how we litigate cases. Attorneys have become more familiar with E-discovery and E-filing in recent years and, as new technology develops and social media sites experience surges in use, attorneys and the legal system are responding.

Social media sites are quickly becoming a great source of information and even admissible evidence. Messages, pictures, posts and comments in social networking sites now provide an avenue for the discovery of evidence for attorneys. According to a survey cited in the National Law Journal, 81 percent of legal responders said they had seen an increase of social media evidence in court cases they had witnessed. Workers’ compensation, domestic, personal injury, prosecutors and defense attorneys, just to name a few, are now using this form of evidence in courts of law. The American Academy of Matrimonial Lawyers says that 81 percent of its members have used evidence from social networks in court, 66 percent of which cite Facebook as the main source with MySpace following at 15 percent and Twitter at 5 percent.

It’s not hard to understand why. People feel a false sense of privacy while communicating with friends on these sites. Far too many people share an abundance of their personal information online because of the apparent “privacy” of these communications. But as we in the legal system know, nothing that is posted on the Internet is ever truly “private.” The use of social media sites has become so commonplace that people don’t think about what they are giving out and who is able to view it, nor do they remember to remove a friend or block access to their information when they should.

These are just a few examples where evidence gathered from social media sites were used in a court of law:

• A parent took a vacation with her kids outside of state jurisdiction and then posted pictures on Facebook.
• A parent denied smoking marijuana in court but posted partying, marijuana-smoking pictures of herself on Facebook.
• A parent seeking primary custody posted “single and childless” on match.com.
• A parent claimed to be with her children but online gaming systems showed her to be online with her boyfriend.
• A parent ordered to stay 100 yards away from his wife and children then contacted both children on Facebook.
• Man denied having anger management issues but then posted to Facebook: “if you have the balls to get in my face, I’ll kick your ass into submission.”
• A defendant denied gang membership but posted pictures on MySpace of himself throwing gang signs while wearing gang colors and standing next to admitted gang members.
• A defendant denied drinking alcohol but his Facebook post stated that he was attending a party and showed him holding a beer on the date of the traffic accident.

While finding a picture of a defendant holding a beer immediately before an accident rarely happens, important information can still be gained from these sites given the casual tone of communication. Rather than worrying about legal interests, users of social networking sites often have the sense that they are communicating only with trusted friends and loved ones. Attorneys are using social media sites to gather all kinds of personal information on people including their dating practices, financial status, physical well being, activities and habits. Facebook even has an application that allows users to “check in” places. Information about where people frequent, how often and with whom is even available using this application.

In a 2003 case out of Suffolk County, New York, the judge ruled that “anything you post to Facebook, regardless of your privacy settings, can be used as evidence in a court of law.” In that case, the plaintiff, Kathleen Romano, sued a chair manufacturer claiming that she sustained “serious permanent injuries” as a result of falling out her office chair. Steelcase Inc., makers of the chair, located public photos on Facebook of the plaintiff smiling, walking around and taking a trip to Florida. Romano, as well as Facebook, objected to a discovery request for all of her private Facebook photos. The Judge disagreed and ruled that Facebook must release all information, regardless of the privacy setting, where there was a reasonable expectation of discovering new evidence. The case went up on appeal and in September 2010 the Supreme Court of New York ruled that because public portions of her Facebook page contained material that was contrary to her claims, there was a reasonable likelihood that the private portions of her site might contain further information relevant to the defense.

While questions still remain as to how this evidence may be properly obtained and admitted, as lawyers, we must begin looking at the ramifications of this new media on the lives of our clients and our legal system. Many lawyers are now cautioning clients in their initial interview to remove or block access to any online accounts that they have. Some courts are even beginning to address the issue during jury instructions as a result of recent problems such as:

• A juror posted details of the trial on Facebook and polled friends as to how the case should be decided.
• A New York juror “friended” a witness on Facebook one day after deliberations began.
• A girlfriend of a California defendant contacted a juror through MySpace.

Courts have historically informed jurors not to do any additional research outside the courtroom. Some of the prohibited actions typically include the use of dictionaries, encyclopedias, books and even Internet searches. Perhaps courts now need to routinely instruct jurors to avoid social networking sites as well.

Regardless of our familiarity with social media sites, we must educate ourselves about their use and potential viability in a court of law. As attorneys, it is incumbent upon us to understand these sites and how they operate, to utilize them to build evidence when necessary and to advise our clients accordingly. As Pete Cashmore, founder and CEO of the social media blog Mashable, wrote: Privacy is dead, and social media is holding the smoking gun.