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Rather, these are just my observations in arguably the most racist, fascist, militaristic state in the nation at a critical time in history for a number of intersecting liberation movements. From Indigenous resistance to genocidal practices, to the fight over laws like SB1070 and the ban on Ethnic Studies, Arizona is at the center of many battles for human rights, and thus the struggle for prison abolition as well - for none are free until all are. I retired the blog in APRIL 2013.

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Sunday, November 8, 2009

Social Media as Evidence

Evolving evidence

By KAREN LOVETT Staff Writer 
Nashua Telegraph

 
Whenever defense attorney Chuck Temple takes on a new client, he sends them a message, loud and clear.
“We tell them all the time now not to talk to anybody with respect to what they’ve been charged with,” Temple said.

That’s nothing new – except for by “talk to,” Temple means “post,” “Tweet,” “text” or “upload.”

He explains to his clients that blabbing on social media sites about their potential involvement in a crime “is akin to talking at the jail where your conversation is recorded,” Temple said. “It’s almost like you’re writing out your confession at the police station, but you’re doing it on Facebook.”

Such is the new, expanding role of social media as evidence in the courtroom.

Where police, prosecutors and defense attorneys once relied heavily on documents, written statements and wiretap recordings as evidence in civil and criminal investigations, they’re now scouring the Internet for incriminating postings and pictures on sites such as Facebook, MySpace, Twitter and YouTube.

“The evidence is changing,” said Temple, who oversees Franklin Pierce Law Center’s criminal practice clinic, adding that an estimated 10 percent to 20 percent of his cases include evidence from social media sites.
And, said David Ardia, director of the Citizen Media Law Project at Harvard Law School, it isn’t going away.

“We’re likely to see more cases involving this evidence as people live more of their lives online,” Ardia said. “People are creating much more extensive digital trails.”

Maj. Nidal Malik Hasan, the Army psychiatrist who is suspected of killing 13 and injuring dozens of others at Fort Hood, Texas, last week, previously posted threats and messages about suicide bombings on the Internet, The Associated Press reported.

Closer to home, Ardia didn’t know of any high-profile cases in New Hampshire during which social media was offered as significant evidence. However, some have questioned to what degree, if any, the Facebook and MySpace postings of the young men accused of killing Kimberly Cates in Mont Vernon recently may come into play.

Christopher Gribble, a 20-year-old from Brookline, is accused of using a knife to kill Cates while she was in bed. Images from Gribble’s Facebook page show him with what appears to be a knife clamped in his mouth.

Quinn Glover, a 17-year-old from Amherst, is accused of robbery, burglary and conspiracy to commit murder. His MySpace page showed an image of him appearing to licking an axe.

Prosecutors in the case won’t say whether online information led them to the suspects, and neither side has released information about evidence.

In general, though, if social media posts, conversations and pictures are to be presented in court, they must past muster through the rules of evidence, which govern what’s seen by a jury. The rules include strict requirements regarding hearsay, authenticity and relevancy, to name a few.

This means that if there’s a lack of evidence linking online pictures or posts to the specific charges, lawyers on either side will be hard-pressed to get them admitted.

“Just because they have on a Web site all kinds of horrible pictures … doesn’t necessarily mean they’re related enough to the actual homicide to be admissible to a jury,” said Albert “Buzz” Scherr, a law professor and evidence expert at Franklin Pierce.

“Judges are very careful to apply the rules of evidence as they exist,” Temple said. “The real crucial part of it is authenticating it and linking it back to the person making these statements or posting the photographs.”
Evidence can be validated in numerous ways, Scherr said.

Images, for example, might be authenticated by witnesses who knew a person around the time a picture was posted, which can be traced and verified by computer experts.

And if prosecutors can connect a specific piece of evidence they’ve collected to a picture or reference of it online, it can be powerful, Temple said.

“If a certain knife was used, and there’s a picture on Facebook of this defendant with that knife, and the knife can be identified, that could be crucial evidence in the case,” Temple said.

Then again, Scherr said, admissibility problems can crop up because digital photographs are easier to manipulate than traditional prints.

“New media is a little more subject to manipulation than a handwritten letter,” Scherr said. “There’s a good bit more they have to show to authenticate a photograph” because of that.

Relevancy is another matter, Ardia pointed out.

An image showing a weapon that isn’t alleged to be involved in a crime probably won’t make it before a jury because it’s unfairly prejudicial.

“Many people think (prosecutors) can show all this horrible stuff on YouTube and Facebook, and it shows (the defendant is) like a killer,” Temple said. “You can’t prove a crime by trying to show through social media a defendant has a propensity to commit a crime. It’s just not allowed.”

But, Ardia said, if a defendant takes the stand and “talks about how great a person he is, that he’s not violent,” then such evidence could be admitted to impeach those statements.

While the rules of evidence mediate what juries see during trials, they don’t apply during the sentencing phase of civil or criminal cases.

Two years ago, an Arizona woman was convicted of DUI and killing her passenger. During the last phase of her case, she received a dramatically increased prison sentence after prosecutors discovered images on her MySpace page showing her with shot glasses.

Another teen in that state who was convicted of an armed holdup received a longer sentence when prosecutors found a MySpace image showing him wielding a weapon and commenting about it.

Locally, Hillsborough County Chief Justice Robert Lynn had to consider whether to allow a MySpace page as evidence in the 2007 statutory rape trial of Robin Mowery, of Nashua.

Also in 2007, Michael Munoz Ramirez, of Hudson, who admitted causing a high-speed crash that killed his close friend, lost his plea deal when prosecutors discovered images of him apparently partying on his MySpace page. When the photos surfaced, the victim’s mother wanted Ramirez jailed, but later had a change of heart and he was spared the jail time.

Lynn said he’s seeing more cases in which prosecutors and defense attorneys have gone on MySpace or Google looking for someone’s name or someone’s place of business, seeing what they can find and introducing it for trial.

Temple, who leads a program at Franklin Pierce that allows students to assist in real cases, said he uses social media to investigate his own clients.

He recently defended a young man who was charged with felony criminal threatening and who discussed the incident on his MySpace page.

“That was powerful, in my view,” Temple said. “I wasn’t happy to see … that purportedly my client was making certain admissions.”

His client was eventually referred to a diversion program.

Sherr said when he was practicing law, he’d punch the names of potential jurors into Google to “see if there’s anything out there they’re not telling us.”


For example, he said, a juror might have donated to a police benevolent association, indicating the juror had strong sympathies for law enforcement.


That information wouldn’t be enough to disqualify a juror, Scherr said, but it might suggest that “they wouldn’t be the best juror to have on my case.”


“It’s good investigatory work to, say, ‘Google’ the name of the witness or a client,” Scherr said. “You get to know a lot more about witnesses that you can’t pick up in old-fashioned ways of investigation.”


Still, Scherr said, the new technology doesn’t seem to be tripping up the court system at all. Lynn agreed.


“In a sense, these kinds of things are really no different than conventional prior statements of witnesses,” he said. “It’s just now a statement they’ve made in a different form.”


“The rules have accommodated these new technologies pretty easily without upsetting any apple carts,”

Scherr said. “It’s not going to cause a crisis in the court.”

Karen Lovett can be reached at 594-6402 or klovett@nashuatelegraph.com.

© 2009, Telegraph Publishing Company, Nashua, New Hampshire

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