My other articles about this may be found here and here. Those articles have started to attract some attention of their own….

The first article brought attention from both Sam Hasler’s Indiana Divorce & Family Law Blog and LawyersUSA. When Boston reporter Justin Rebello first contacted me I wasn’t sure I’d be able to read the article he was planning to write: LawyersUSA runs around $199 per year —a little out of my range for a magazine.  However, it turns out the article can be found online here.¹

A simple Google search will show you the importance of social networking and the law in general.  As has already been discussed here on Probable Cause, investigators are increasingly using social networking sites in both civil and criminal investigations.  In 2006, the House of Representatives passed a bill, which later hung up in a Senate committee, to “delete online predators” and Senator Ted “Internet Tubes” Stevens (R-AK) (as Jacqui Cheng of Ars Technica appropriately called him) made another run at it in 2007.  Social networking sites and blogs have resulted in lost jobs, libel and defamation lawsuits, as well as suits for copyright infringement. Lawyers are podcasting about social networking and the law.  Stanford Law School is holding seminars on social networking law. Jury consultants are using MySpace, Facebook and other social networking sites to help pick jurors.

The popularity of social networking — and the growing popularity of their use in civil and criminal cases — means lawyers simply cannot ignore them.  Heck, Collexis recently even created CasemakerX,a social networking site for law students!  It’s safe to say, then, that social networking websites are here to stay.  If you’re a lawyer, you better be up on the implications.

And if you’re a potential juror, remember:  We’re watching you. 

1. I don’t know what’s more exciting: the fact that Probable Cause has already attracted that much attention or the fact that in the same month, my personal blog, Unspun™ attracted the attention of someone at Ariana Huffington’s website! The Huffington Post article quotes my article on Marbury v. Madison, one of the seminal and most important of all United States Supreme Court cases.

What I told him was…

…first of all, that the laws of evidence varied in different states. (If you haven’t seen my Disclaimer, by the way, regarding the fact that this blog does not offer particularized legal advice, you may wish to check that out here.)

Today, I received a copy of another article — not the one from LawyersUSA — as a California Attorneys for Criminal Justice Newsflash. So it seems the word is getting out about just how harmful social networking sites can be for people accused of crimes.

The most difficult aspect of this is that Joshua Lipton, the kid about whom I wrote last time and who is featured in most of these other stories, wasn’t even the one who posted the pictures, apparently.

[The prosecutor] assembled the pictures – which were posted by someone else but accessible on Lipton’s page – into a PowerPoint presentation at sentencing.¹

I guess that proves the old saying, “With friends like these, who needs enemies”, eh?

What I told the reporter from LawyersUSA — that the best way to avoid this problem is to stop posting things to your social networking sites that could come back to haunt you — doesn’t help in this situation. But the rest of what I said does.

Relevance

Perhaps the first thing I’d try to argue is that the photographs are irrelevant. In California, the Evidence Code states that “[n]o evidence is admissible except relevant evidence.”²

And,

“Relevant evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.³

So the argument I’d make is that the photographs or other evidence obtained via social networking sites has nothing to do with any disputed fact of consequence in determining guilt in the particular charged crime. Of course, this won’t work so well if a client’s MySpace blog entry says, “I shot the b*tch. I just got tired of listening to her!” or “He p*ssed me off, so I ran his car off the road.” So try not to write such things.

Contextualization

Another approach is contextualization. By this, I mean putting the evidence in the context not just of the social networking context, but in the context of the accused person’s life, or the culture and generation in which the individual lives.

The “social networking context” means that arguing that the statements or images are to be taken in the same way as fiction stories. They are there to impress someone, but are not necessarily true. For example, someone might write something like, “I hate Judy so much that I feel like punching her lights out.” Later, the person who wrote that on his blog is arrested for battery on Linda. The prosecutor wants to present the evidence under California’s Evidence Code section 1109 as evidence of other domestic violence. Forgetting whatever other reasons this might not be allowed,⁴ the “social networking context” argument is that this is puffery posted to a blog; it is not a statement of what someone might have actually done or even of what he might do.

Another approach to contextualization is to put the evidence in the context of what’s happening elsewhere in this individual’s life. Lipton’s attorney tried this when he essentially argued that his client was emotionally unable to cope with what was happening, but in his case, it didn’t work. The problem is that the pictures were just too “over the top” for the judge to handle. That doesn’t mean, however, that contextualization is a bad approach; it simply means that it won’t always work.

Putting things in the context of the culture (e.g., hip-hop, being an actual non-gang-affiliated Raiders fan) and generation (i.e., GenX, GenY, Millenials, Baby Boomers, Echo Boomers) in which someone lives can be particularly helpful when it comes to so-called “gang evidence.” Flashing “gang signs” is ubiquitous these days, everyone is doing it from cheerleaders to Cub Scouts to NFL stars. Or, at least, they’re being accused of doing it. The point is, there’s a difference between “flashing” a sign because you think it’s cool and flashing a sign because you’re a gang member sending a message or a warning.

Prejudicial versus Probative Value

I don’t know about other states, but in California, the Evidence Code includes a section dealing with prejudicial evidence. Here’s what California Evidence Code section 352 states:

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

Thus, one argument would be that the photographs of people partying on MySpace are not very probative as to what they did or did not do or feel regarding a particular case in which they were involved and yet, on the other hand, they would tend to create a substantial danger of undue prejudice in the minds of jurors. (It’s harder to argue that the judge should not see the photographs because his or her passions would be inflamed, but I see no reason you couldn’t try!)

Other Options

There are, no doubt, other options. If you’re facing criminal charges and have a blog, MySpace, Facebook or other social networking website, you might want to consider hiring me! Call (559) 233-8886. I’ll fight for your rights today!

Related Links

• “Web networking photos haunt defendants” (July 19, 2008) Silobreaker
• Eric Tucker, “Facebook a new source of evidence” (July 22, 2008) Brisbane Times
• Evan Brown, “Social networking evidence presents challenge in prosectuion over alleged threats made after Virgina Tech shootings” (January 28, 2008) Internet Cases

1. Tucker, “Facebook a new source of evidence” (July 22, 2008) BrisbaneTimes, found at http://www.brisbanetimes.com.au/news/ technology/facebook-a-source-of-evidence/2008/07/22/ 1216492407644.html?page=2 (last visited August 1, 2008).
2. California Evidence Code section 350.
3. California Evidence Code section 210.
4. Remember my disclaimer? The example I’m using here may or may not be admissible as 1109 evidence. My point is that some silly prosecutor wants it to be admitted under that theory.

State agents — this includes the police, prosecutors and judges — sincerely want to make the world a better place. I may disagree with their methods, but I have no doubt that nearly all of them actually do have this as a primary goal.

Thus, an individual accused person’s behavior and appearance can significantly help or hurt their case at all stages, from arrest to prosecution to conviction. In fact, I’ve won several cases where it mattered.

It may not be appropriate to express remorse after pleading guilty and before being convicted, since that would seem to contradict the NOT GUILTY plea. However, there’s nothing wrong with dressing and behaving in a way that shows some respect for the situation. In one recent case I had, my client showed up with a t-shirt that said something like “PIMPmaster” on the front. In another, my client and a co-defendant slouched in their chairs, chatted with one another and appeared to be joking and laughing about the situation, while the judge was talking to another co-defendant. In neither case was the court impressed. Each of these individuals was lectured and you can bet their behavior factored in to decisions the court made about them.

So it was no surprise to me to read that people convicted of crimes are receiving stiffer sentences because of their MySpace and Facebook pages. Two cases mentioned in the story involved drunk driving charges. And, again, that’s no surprise to me. Most of the MySpace or Facebook pages that I’ve seen seem to accentuate the partying side of the person owning them.

Another thing that a lot of Californians don’t realize is that police and prosecutors are anxious to charge brown people with short hair as “gangsters.” Under the law in California and some other states, being a gang member will get you in trouble with the law.² Not infrequently, people who are not gang members are arrested and prosecuted on gang charges. A MySpace or Facebook page showing the individual “flashing gang signs” becomes “evidence” of gang involvement. Making the pages or images “private” doesn’t necessarily help.

So if you find yourself in legal trouble, one of the first things you might want to do is take a look at your online social networking profiles. Attorneys these days should probably talk to their clients about these things, as well, and ask clients for the URLs to any social networking pages they maintain. And if you’re the sort of person who tends to get into trouble, don’t advertise the fact on MySpace or Facebook.

Ignore this advice and you may have new images to post on your account. You may even end up with a new account.

1. In the interest of staying alive, I’ve decided not to post any examples.
2. Technically, being a gang member is not illegal and any laws saying so would be officially unconstitutional. That doesn’t have any impact on reality. If you are, or if the police think you are, a gang member, you are public enemy number one.