Facebook & Courtroom Credibility

Switching the freight train's tracks

If I needed any more evidence that social media has pervaded every crevice of our lives, I got it in recent weeks.

  • The Social Network - The movie, released last year. As of January 12, 2011 it had won Best Picture from all leading trophy groups: National Board of Review, New York Film Critics Circle, Los Angeles Film Critics Association and National Society of Film Critics and was the odds on favorite for the Golden Globe and Oscar.
  • Mark Zuckerberg - Facebook's founder and CEO became TIME magazine's youngest Person of the Year.
  • Mark Zuckerberg - same as above, became the youngest billionaire.
  • Facebook hit 500 million users. That would make it the 3rd largest nation - behind China and India and well ahead of the U.S.
  • Social media has now closed the parentheses on our romantic lives. After getting started with eHarmony or Match.com we deal with a bad break up with sites like IHateMyEx.com or YouBrokeUpHow.com.
  • There's even a web site and new book to help us deal with our digital afterlife.

For the sake of disclosure, I need to confess I don't do social media. I have no Facebook, Youtube, MySpace, Twitter, Flickr, Photobucket, LinkedIn, Digg, Ning or Yelp page. (And that's just the Top 10 of the Top 50 Social Media Resources. Web link below.) Nor have I accepted any invitation to become someone's "friend."

I don't consider myself a Luddite. I'm just not that social. I'm also not that trusting. I don't trust other users to employ the same precautions I think are common sense and I don't trust hackers or the security against them. Finally, I don't have enough free time as it is.

That said, I understand that trying to ignore social media is like trying to ignore a freight train while walking the tracks. I also understand I now have to address social media in preparing officers to testify effectively.

Are you ready to face ALL your internet postings on cross examination?

I write about and train on winning courtroom testimony for law enforcement officers. In my training I often ask officers

What is the first thing you should do to start preparing for your courtroom appearance in a particular case?

Commonly, the answer is,

Review my report.

I then advise officers to start before that and be thinking about testifying while they write their report. This will raise their awareness. It will have them more vigilant about how the defense might misconstrue, misrepresent or otherwise use something in their report against them and thereby help them avoid some common but avoidable mistakes.

Now I need to take officers a GIANT step back even before they are writing their report. Instead, officers need to be thinking about their courtroom appearance, and their "favorite" criminal defense (or civil plaintiff's) attorney each and every time they post anything on social media.

"The Officer Who Posted Too Much on MySpace" clearly hadn't done that. Officer Vaughan Ettienne arrested Gary Waters for felony possession of a 9mm Beretta and a bagful of ammunition. Waters also ended up being charged with the misdemeanor of resisting arrest. The case went to trial in State Supreme Court in Brooklyn and rested, in large part, on Officer Ettienne's credibility.

Waters claimed that Officer Ettienne and his partner stopped him, beat him, and then planted a gun on him to justify the beating. When the case started, the defense was going to focus on Officer Ettienne's use of steroids (with a doctor's prescription) and argue it could have caused an irrational rage. Then the defense got a gift that kept on giving - Officer Ettienne's own postings on the internet.

The day before trial Ettienne posted a description of his mood on a MySpace account as devious. Besides this, jurors learned that a few weeks before trial, the officer posted on his Facebook page:

Vaughan is watching 'Training Day' to brush up on proper police procedure.

Training Day was a movie starring Denzel Washington as a rogue narcotics detective who doesn't hesitate to break the law in his own war on drugs.

Then the defense discovered comments Officer Ettienne made on the internet about video clips of arrests.

  • An officer should not have punched a handcuffed man, Ettienne wrote, adding, "If he wanted to tune him up, he should have delayed handcuffing him."
  • "If you were going to hit a cuffed suspect, at least get your money's worth 'cause now he's going to get disciplined for" a relatively light punch.

While convicted of the misdemeanor charge, Waters was acquitted of the felony. (He was on parole from a burglary conviction when he was arrested.)

How many of you can imagine yourself or an officer you know engaging in such talk as locker room bravado?

As Officer Ettienne commented after the trial,

You have your Internet persona, and you have what you actually do on the street. What you say on the Internet is all bravado talk, like what you say in a locker room.

The problem is, unlike a locker room, what's said on the Internet exists in cyberspace and is available for subpoena. Officer Ettienne now curbs his tongue. Let us all learn from his experience. As he acknowledged,

It paints a picture of a person who could be overly aggressive. You put that together, it's reasonable doubt in anybody's mind.

And what kind of doubt might it be in a civil use of force lawsuit?

Do you know your online reputation?

What kind of picture have you painted of yourself online? You may be as surprised as the woman who checked herself out on her Twitter lists feature and discovered a porn star had included her on a list and another user listed her under people I've seen naked - a surprise because she had never met the person. (Web link below to PC World article.)

Stay tuned

Now that you're thinking about facing all your online postings - and possibly the postings of others about you - on cross examination in a criminal case or civil lawsuit, stay tuned to next month's PT 2 of Facebook & Courtroom Credibility when we'll look at:

  • How defense attorneys and their investigators can pierce your online postings even if they're privacy protected.
  • Discovering and protecting your online reputation.
  • How jurors may be backchanneling you during trial.
  • Getting the prosecutor involved.

In the meantime, just think of anything you post online as a sandwich board you wear into court.