Monthly Archives: November 2011

Is tweeting grounds to overturn a murder conviction?

Could a few tweets overturn a murder conviction?

 “He’s paying more attention to his Twittering than the evidence”

The Arkansas Supreme Court will be soon  be forced to answer this question. Apparently, a juror in a capital murder case was tweeting from the jury box and the jury room even though the judge admonished the juror not to tweet anything about the case.[1] While the juror didn’t tweet about the substance of the case the juror did tweet that he was reluctant to deal with the death penalty and also tweeted “It’s over” from the deliberation room – before the jury announced it’s verdict.

“After even being brought in and questioned about it, he went back and twittered during the sentencing deliberations” [2]

This is a subject I have been paying close attention now for a few years. Technology has rapidly been wreaking havoc into the jury box and how it threatens the sanctity of our legal system.

While California Governor Jerry Brown may have recently signed a law prohibiting juror tweeting and other social media activity, jury instructions simply don’t go far enough.  Jurors either need to face severe monetary or criminal sanctions OR they need their smatphones and electronic devices taken away from them when they enter the courtroom. Some have even proposed digital sequestration.[3]

The problem will only continue to get worse.  We have already had civil judgments vacated due to juror’s social networking activity. Now we have people’s lives at stake.  Criminal defendants have a Constitutional right to a trial with an impartial jury.[4]  It is the bedrock of our criminal justice system.

We will soon find out if a few 140 character tweets are enough to violate a criminal defendants 6th Amendment rights and merit that a murder conviction be overturned. Jurors need to face severe penalties for undermining our justice system before it erodes even further.

The following is from a juror whose tweet vacated a $12.6 million civil verdict:

[1] Another juror was also caught sleeping. This story was first reported by the Associated Press and the Arkansas News Bureau. See Lawyer: Tweeting, sleeping by jurors cause to overturn Murder Conviction.

[4] The Sixth Amendment guarantees an impartial jury for all criminal defendants.

ESI & Social Networks

With the staggering amount of electronic content  in social networks such as Facebook, Twitter, LinkedIn and YouTube it’s no surprise that increasingly more attorneys are attempting to introduce this ESI into evidence at trial.

“It is very easy to create fake social media pages and have your social media account hacked. Fraudulent access to social media pages occurs more often then some may think.”[1]

However, can this evidence be relied on at trial and will the judge even let it in?  Like many legal answers – it depends.  It depends primarily on the relevance of the ESI and what the evidence is being used for.

Many recent court decisions regarding electronic evidence is the concept that emails, text messages and social media data are subject to the same requirements for authenticity as traditional paper documents.[2] The question becomes what is the most appropriate way to authenticate ESI printed from a social networking website?

In a recent Maryland case the prosecution failed to lay a proper foundation for MySpace pages that they tried to introduce into evidence.  The defandant argued that the State failed to lay a proper foundation for the MySpace pages:[3]

“The potential for abuse and manipulation of a social networking site… leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication….”

According to the Maryland court the following would have helped to authenticate the evidence:

  • Testimony from the person who created the post
  • Searching the hard drive and internet browsing history of the computer used to create the post to verify when and from where the post was created
  • Obtaining information directly from the social media site itself to show who created a page or post, and when and from where particular posts were sent.

In another case from Connecticut a court would not allow Facebook messages because the authorship of the messages could not be authenticated.[4] The bottom line is that the world was  vastly different place than it was ten years ago.  The pervasivnes of computers, laptops, smartphones and other mobile devices combined with the rise of Web 2.0 means that our lives have changed greatly – and so has the way attorneys find and utilize evidence.

When presenting this new ESI at trial, it’s important to have a game plan ahead of time.  What is the ESI that will be used?  How will it be used?  And how will you get it into evidence at trial.

In the lack of clear guidance in your state, it’s wise to know some of the principle cases from around the country. And it’s also wise to get advice from those who know. If you need further assistance with social media and Facebook evidence, we have an excellent course taught by trial attorney Dan Gilleon entitled Finding and Obtaining Electronic & Social Media Evidence at Trial.

Further Resources:

Authentication of Social Media Evidence

eDiscovery by Geeks for Attorneys

Maryland’s Social Media Evidence Authentication Decision Provides Much Needed Guidance

[1] Maryland’s Social Media Evidence Authentication Decision Provides Much Needed Guidance

[2] Authentication of Social Media Evidence

[3] Griffin v. State, 419 Md. 343 (2011). The court concluded that even though the social media profile contained a picture of the defendant and his girlfriend and her correct birth date and location, this information was insufficient to authenticate the printout.

[4] State v. Eleck, 23 A.3d 818 (Conn. App. 2011). In refusing to authenticate social media message printouts, the court noted the “general lack of security of the [social network] medium” raises evidentiary issues and makes it incumbent on the defendant to advance other foundational proof to authenticate the proffered messages.