New York Times: Most Criminals are Dumb

The New York Times provides a good rundown on just how pervasive social media is, both in the criminal law and civil litigation context.

There are a couple interesting points raised.  Lori Andrews, a social media expert and professor at Chicago-Kent College of Law sees the prevalence of social media as a "novel threat to the right to a fair trial."  In her view, many judges are "willing to admit anything from social media, without scrutinizing it closely" for authenticity, reliability and relevancy.

I've discussed how an expert isn't a foregone necessity in authenticating social media evidence, but I find the good professor's position to be somewhat alarmist.  If defendants did not have attorneys fully capable of attacking the authenticity or reliability of a piece of social media evidence, then perhaps Facebook could pose a threat to the 5th Amendment.  For whatever reason, as the article points out, criminals seem to enjoy publicizing their exploits on social media.  The Constitution is there, in part, to protect the right to a fair trial, not protect a criminal from his own lack of judgment. 

The article also explores the phenomena of potential jurors posting about defendants and trials while sitting in the jury box.  Apparently, a Washington man posted "OMG! jdg picked me 2 decide doods f8! Looks gil-t from here ;-)."  This brings to mind the old lawyer joke that a jury is comprised of 12 people not smart enough to get out of jury duty. 

The First Rule of Defrauding Social Security

It's not that hard - if you're going to fake a psychological condition in order to get Social Security benefits, try to avoid posting pictures and videos of yourself that prove you're a normal functioning adult.  And also: don't talk about defrauding social security.

Pictured to the right is Richard Cosentino, formally of the New York City Police Department.  He and more than 100 other people have been charged with defrauding social security as part of a scheme going back to 1988.

"The plot . . . involved four facilitators who helped coach hundreds of applicants on how to convince the Social Security Administration that they were entitled to monthly disability payments because they were unable to work at any job due to psychiatric conditions."  Half of the applicants were claiming injury as a result of 9/11.  

The 4 "facilitators" coached the alleged defrauders on how to act and dress depressed as well as intentionally fail memory tests.  The applicants claimed "that they were unable to perform basic life skills like cooking for themselves, grooming themselves paying bills and socializing."  

Unfortunately, it appears the coaching did not include helpful hints like:

• Don't post pictures of yourself riding motorcycles and jet skis
• Don't open and advertise a martial arts school and then post videos on YouTube with your awesome moves set to music
• Don't go on deep sea fishing trips and then post the pictures if you claim you cant leave this house (Richard Cosentino could have really used this tip).

Exit question: does social media cause people to lose common sense? Or does it simply highlight the people who already have no common sense to begin with?

Friend Request Overruled

A tale as old as time: judge sends friend request to plaintiff; plaintiff denies friend request; judge issues adverse ruling to plaintiff; judge gets disqualified.

One would like to think judges would exercise a little more discretion in their social media habits, and for the most part, that's the case.  However, every now and then, there's an exception to prove the rule.

Today, we have Judge Linda Schoonover from Florida's 5th district.  Judge Schoonover was presiding over Sandra Chace's divorce proceeding.  Over the course of the trial, the Judge sent a friend request to Ms. Chace.  Her attorney advised her not to respond.  When it came time for the final decision, Judge Schoonover issued a ruling that Ms. Chace felt was highly unfavorable to her.  Ms. Chace then asked for Judge Schoonover to be disqualified, and the Florida District Court of Appeal agreed.

The Court of Appeal felt the Judge's friend request in the middle of a proceeding was an ex parte communication, which violates Florida's Code of Judicial Conduct and "has the ability to undermine the confidence in a judge's neutrality."

To be fair, attorneys can fall victim to social media misjudgment as well.  While prosecuuting People v. Armstrong in California, the trial judge ordered the state to produce its key witness for an interview with defense counsel.  Given the nature of the case and history of alleged crimes, the prosecutor was less than thrilled with the proposition.  Unfortunately, the prosecutor referred to the order to produce in this fashion: "After I spent the day trying to prevent my 13 year-old star witness from being kidnapper, I found out I am getting the Prosecutor of the Year award from the Victims Service Center."

The trial judge felt the prosecutor's comments created a "substantial likelihood of materially prejudicing" the matter and demonstrated "an incredible display of poor judgment."  Ultimately, the court found no prejudice, so no mistrial was declared.  The judge did admonish the prosecutor and felt strongly enough about it to write an opinion.  Moral of the story: be careful with flippant comments about work, especially on social media where it can be easily documented.

Do You Need an Expert for Social Media Evidence?

Experts are expensive.  Is hiring one a necessary expense for social media evidence?

Questions of admissibility are up to the trial judge, and in most jurisdictions, the appellate courts review the decisions on an abuse of discretion standard.  Translation: I hope this post is helpful, but ultimately, the judge has the say on what's required to authenticate evidence and show it to the jury.

The threshold issue in determining if an expert is needed is whether the evidence requires scientific, technical or other specialized knowledge to understand.  You may recognize that from good ol' Federal Rule of Evidence 702, or the Daubert standard.  

Given the near ubiquity of social media, it doesn't seem likely that there are many jurors (or judges if you're in a bench trial) who aren't familiar with the likes of Facebook, Twitter, Instagram, LinkedIn and Pintrest.  FYI - there's way more social networking out there.

Anyway, if all we're talking about is authentication and chain of custody, then I do not think you need to run out and find a software engineer, computer expert or digital forensic expert to testify about how he found the Facebook post, printed it, and then ever-so-carefully walked it to the courthouse so the fine jurors could review it.  No, considering that most 4-year olds can perform that task, I don't think we need a post-doctoral candidate's expert opinion. 

But lawyers being lawyers (and judges being judges), it's always better if you have some precedent to prove your point.  May I suggest State v. Taylor, 178 N.C. App. 395, 632 S.E.2d 218 (N.C. App. 2006).  Mr. Taylor was found guilty of first degree murder, first degree kidnapping and robbery.  He appealed on several grounds, including the trial judge's admission of text message transcripts over Mr. Taylor's motion in limine; more specifically, Mr. Taylor argued that the text messages were not properly authenticated.

The prosecution authenticated the text messages by having a Nextel store manager testify that he downloaded the content of the texts from Nextel's website, printed them off, and then "ever-so-carefully walked it to the courthouse so the fine jurors could review it."  No, that is not in the opinion.  I'm quoting myself.

The North Carolina Court of Appeals found this to be sufficient and declined to reverse his conviction on these grounds.  Key to the Court of Appeals decision was Rule 901(b)(1) of the North Carolina Rules of Evidence.  Rule 901 provides a non-exhaustive list of ways to authenticate evidence.  Subsection (b)(1) allows a witness with knowledge "that a matter is what is claimed to be" to authenticate something.

The Court of Appeals also held that there need not be direct evidence that the person wrote the post as long as there is other circumstantial evidence form which the jury could infer authorship: Rule 901(b)(4) provides authentication may be made through "[a]ppearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with circumstances."

The jump to social media posts is quite easy, especially since the store manager in Taylor printed off the information from a website.  As long as the witness can testify that he saw the post and there is other circumstantial evidence (say a photo of the person), then there is probably no need to hire an expert to perform this otherwise mundane task.

Spoliation and Social Media

The problem (there's just one?) with trying to preserve social media evidence is that by its nature, its dynamic and constantly changing.

In this article, Mike Hamilton provides a good example of a judge giving the dreaded spoliation instruction for failing to properly preserve social media evidence.

In Gatto v. United Air Lines (D.N.J. March 25, 2013), the defendants eventually gained access to the plaintiff's Facebook page.  The plaintiff supposedly elected to deactivate his Facebook page.  He then informed the defendants that any posts were now lost because Facebook automatically deletes your account 14 days after deactivation.  Fun fact: this is not true.  If you have deactivated your account, you can still log back in with your old credentials, and everything will be the same.  If you can go without social media for 14 days, give it a try.

Generally, in order to get a spoliation instruction, a party must meet four factors:

1. The evidence was in the party's control
2. There was an actual suppression or withholding of the evidence
3. The evidence destroyed or withheld was relevant to the claims or defense; and
4. It was reasonably foreseeable that the evidence would be discoverable.

If we're talking about one person trying to preserve information from one Facebook page, that's not too complicated.  But what about large multinational corporations who have hundreds of thousands followers and posts?  The task can quickly get out of hand.

Mike's suggestion is to limit the sort of information that is available on a company's social media account.  In other words, take steps to minimize anything that is not related to the company or its product.  If a company finds itself needing to preserve evidence, there's always the good ol' screen grab, but I don't recommend that.  Instead, it's better to hire a company to capture and preserve the data for you.

If you're the one trying to get the information, here's a cautionary tale for you:  most social media companies and cell phone providers are subject to the Stored Communications Act (SCA), which prohibits disclosure of personal information to anyone other than a governmental agency.  Facebook flat out refuses to comply with subpoenas, but not all companies have the same policy.

For example, a lawyer in Maine was suspended for 30 days, and a trial judge alerted state and federal authorities when a cell phone company turned over 50,000 texts in response to a subpoena from the lawyer.  If you can get the other side to voluntarily disclose the information or have the court order disclosure, that's a better idea than picking a subpoena battle with Facebook or Twitter and then possible running afowl of the SCA.

Informational Privacy - Curtilage for the 21st Century

Is this Supreme Court going to find that the 4th Amendment applies to information that a person wants to keep private?

Curtilage, for those of you who do not have the Constitution and its volumes of case law committed to memory, is the area immediately around a house.  Yes, yes, I'm sure the constitutional scholar types are having a fit right now.  After all, I am simplifying a concept that has thousands of pages of case law and briefs dedicated to it.  Nevertheless, this area enjoys the same privacy protection as if it were in the house itself.  This means the police typically need a warrant to search it.  

Erwin Chemerinsky, Dean of the UC Irvine School of Law, hopes that the Supreme Court will bring the 4th Amendment into the 21st Century.  The Court will be hearing two cases which include the issue of whether the police may look at a suspect's cell phone following an arrest.  In Dean Chemeerinsky's view, the question is this: "What is the Fourth Amendment's protection for informational privacy?"

An interesting concept - informational privacy.  Conspiracy theories aside, I would like to think the government isn't quite to the point of reading our minds...yet.  Thankfully, the government can't hook us up to a mind reading machine and pull information out...yet.  So the concept of informational privacy applies to the devices we use to store information outside of the brain; i.e., smart phones, iPads, computers, etc.

Although he doesn't use the terms "curtilage" to describe our beloved personal electronic devices, the comparison is made easily enough.  By advocating that the government needs probable cause and a warrant to search a smart phone, Chemerinsky is declaring a smart phone to be within the curtilage of our memory / brain (you know, the place you used to remember phone numbers and addresses before the age of Google).

It certainly is an interesting concept, and it begs the question: where does curtilage stop and the open fields begin?  Does a person's friends-only section of Facebook enjoy the same protections?  Sure, we're publicizing information to our friends, but is it the same as taking out a newspaper ad for everyone to see?  

Exit question: will the Supreme Court eventually find that there is a right to virtual privacy?  The NSA certainly hopes not.

A Tweet - So Much More than 140 Characters

The information you can get from a tweet goes well beyond the limited world of 140 characters.

Jason Krause points out that "screenshots of social media are simply not sufficient because social media files consist of more than just posts."  He suggests that with so much at risk in trial, you shouldn't take any additional chances that the jury may disregard your social media evidence or not give it enough weight.  It is the litigator's battle to "marshall all the facts" to support his or her evidence - in other words, remove any doubt that the evidence is authentic before the opposition has a chance to attack it.  In short, a litigator needs the metadata.

Due to the nature of any social media evidence, it is in a near-constant state of change: comments, likes, re-tweets.  A screen-shot is not going to capture this information, let alone accurately preserve it.  The best evidence is going to be "an archive that includes all original unaltered source files including HTML, images, CSS (style sheets), Javascript, linked files such as PDF's, and any other data referenced or linked to the page."

Unfortunately, not many lawyers are tech-savy enough (or simply do not have the time) to comb through social media for all this metadata.  Ideally, you want a solution that will capture both the post and the associated metadata in real-time, and then store it in a forensically sound manner. 

For more information on capturing any social media posts and the metadata, check out www.idiscoveryconsulting.com.