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Facebook & Courtroom Credibility, Pt 2

Previously on Officer.com

Last month in Facebook & Courtroom Credibility - PT 1: What's your online reputation? (link below) we looked at a real officer who lost his credibility in a criminal trial based on locker-room bravado (and admittedly stupid) comments he'd posted online that weren't related to the case in which he was testifying. The defendant was acquitted of a felony gun charge that otherwise looked like a sure bet.

This article probes further into how criminal defense attorneys and civil litigants can use officers' own social network pages to discredit them in court.

The criminal defense goes on the offense

As a former state and federal prosecutor, I would often visit the web site for the National Association of Criminal Defense Lawyers (NACDL). I subscribe to "better the devil you know than the devil you don't" so I tried to stay on top of what my adversaries were up to. As a law enforcement trainer and writer, I continue to visit the site for the same reason.

It didn't surprise me to discover that the NACDL is telling defense attorneys how to use social network postings to impeach officers in court. (Link below to It's Time to Level the Playing Field.) The article discusses 3 sources for such evidence:

  • The prosecution.
  • Social networking companies and other people.
  • The internet.

Defense attorneys are being urged to file a motion for early discovery of all Brady material, including electronically stored information. I've discussed the prosecution's Brady obligations in two previous articles found listed on my author's page here on Officer.com. (linked below)

Suffice to say, the prosecution and police have a duty to turn over any exculpatory evidence, including evidence the defense might use to impeach the credibility of testifying officers. Because prosecutors have an affirmative duty to do this, they may be asking officers about information on their social network pages.

Prosecutors may ask about you about such information regardless of your privacy settings. That's because Facebook pages can be hacked. Just ask Mark Zuckerberg, one of Facebook's founders, and Nicolas Sarkozy, the President of France. Hackers got into both their Facebook pages and posted false information. Also, your privacy settings don't keep people you allow on your site from taking your information and posting it on their pages or elsewhere on the internet.

As I prosecutor, I want to know what might be out there that can impeach my witnesses and jeopardize my case. If it could be used by the defense for that purpose, I am then obligated to disclose it.

The NACDL article tells defense attorneys that federal prosecutors are likely to have such information in their possession because the Justice Department is advising its prosecutors to "research all witnesses on social networking sites." The article cites to a DOJ PowerPoint presentation it obtained through a Freedom of Information Act request. Be prepared for state and local prosecutors to do the same research.

Moreover, your department may have cyber-vetted you. Brady obligates the police department to disclose to the prosecution (who then must provide it to the defense) information that could be used to impeach you in court.

The NACDL article acknowledges there are very few cases yet dealing with a court issuing subpoenas to social networking companies and non-party witnesses (those people you have friended, for example). The article nevertheless urges that such subpoenas could be a powerful tool for the defense and provides guidance on how to obtain them under the Federal Rules of Criminal Procedure.

Lastly, the NACDL urges defense attorneys to independently investigate any witnesses on the internet, including social media sites, and to do routine checks periodically.

Civil attorneys can get lots of stuff, too

DISCLAIMER: I have never practiced civil law. Still, I know officers and their agencies get sued, and I've gleaned some information relevant to our topic from Discoverability and Ethics of Social Media Data (link below).

Under the Federal Rules of Civil Procedure, people that sue you or your department may obtain discovery regarding any non-privileged matter relevant to their claims or your defense, including requesting that you or the department "produce... any (relevant) designated documents or electronically stored information." Fed. R. Civ. P. 26(b); 34(a).

We may be familiar with court decisions regarding "expectation of privacy" in the criminal context where the application of the Fourth Amendment is unquestioned. It's a very different ball game in civil litigation. A civil litigant's expectation and intent that communications be private is not a basis for shielding relevant communications from discovery. EEOC v. Simply Storage Mgmt., LLC (link below).

In Mackelprang v. Fidelity Nat'l Title Agency of Nevada Inc., 2007 WL 119149 (D. Nev. 2007), the defendants checked out the plaintiff's public MySpace page after she sued them for sexual harassment. More important, the court held the defendants could discover private messages exchanged with third parties that contained information regarding her alleged sexual harassment and emotional distress.

In the personal injury case of Romano v. Steelcase Inc. (link below), the plaintiff's public social network pages revealed an active lifestyle inconsistent with her injury claims. The court then ruled she had to produce historical and deleted pages and related information and that she could not hide "behind self-regulated privacy settings."

There are huge implications in the above rulings for officers and departments involved in civil lawsuits. Postings involving locker-room bravado or even just cop humor ("Officer, what did you feel when you shot that man?" "Recoil.") may well find their way into court. As I disclaimed, I've never been a civil attorney but I'd love to have the previous statement for not just the liability phase but also when it comes to determining whether punitive damages are appropriate.

Google "e-discovery." An entire cottage industry of "e-discovery" businesses and law firms has sprung up. People are making a living combing the internet for electronically stored information that might be used to impeach you in court.

Light a fire under the prosecutor

Consider suggesting that the prosecutor file a pre-trial motion regarding any use the defense intends to make of online information to impeach witnesses. The support for such a motion is all the false positives and fraud that can occur. I've provided a couple of links below you can give your very busy prosecutor regarding social media hacking she can use in the motion.

The prosecutor should argue that early discovery of such information is necessary to check it for false positives and fraud, which are common, so that the trial will not have to be interrupted and delayed to complete such investigation.

Jurors have internet access, too

This is a whole separate topic but jurors spend lots of down-time in Wi-Fi court buildings. This is causing lots of problems. A Reuters Legal analysis found that jurors' forays on the Internet have resulted in dozens of mistrials, appeals and overturned verdicts in the last two years. (Link below.)

Courts are scrambling for jury instructions to address the issue. (Link below.) Testifying officers need to consider that not all juror web surfing may be prevented or discovered.

So, the question is - are you comfortable with a juror who will be deciding your credibility seeing and hearing everything you've posted online? In fact, that's a good question to ask before every posting.

Let's call this the Officer's Facebook Juror Credibility Test and you need to take the test because you are a law enforcement officer and for no other reason. Sound unfair? Then you need to get another job. Fact is, your credibility is judged by a different and higher standard than any other witness a prosecutor calls to the stand because of what you and your badge represent.

What you don't know can hurt you

Much of what gets posted becomes a permanent record somewhere. Facebook, for one, retains all your information even if you close your account. It's just waiting there for a subpoena.

Did you know that photos can contain embedded information like GPS coordinates showing where the photo was taken and when, even the camera's serial number? (Link below to A growing trend: Social media as legal evidence.)

Know and protect your online reputation

There are lots of commercial applications for "knowing and protecting your online reputation." Just Google that last phrase. I'm not recommending any of them but they sure establish there's a demand.

There's also some free training developed by the Department of Defense (DOD). You can link to it below. If you don't check it out, at least give it to the person responsible for your agency's social media policy. If your agency doesn't have such a person, give your supervisor this article and suggest she read it "if there's any chance any of our officers might ever testify in a criminal or civil case."

The best defense against the defense is to go on the offense. Take the Officer Facebook Juror Credibility Test - each and every posting.



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