Landon Miller of the Faber Law Firm recalls a matter in which a client accused in an assault case found that there was video of the incident from a third party.
The videographer was the client’s own girlfriend who shared the material on her social media.
“The prosecutor sends me screen captures of this girl’s Snapchat story that was public and 500 people could see so somebody reported it and sent it to the prosecutor’s office,” said the Columbia lawyer.
It’s becoming a common story. The rise of social media has created a dramatic expansion of the playing field for both the collection of evidence and its presentation to jurors as well as new issues for judges to grapple with regarding admissibility of a growing sea of personal information flowing freely across the Internet. In both the civil and criminal worlds, self-inflicted wounds by clients are becoming commonplace with a single critical post that can make or break a million-dollar matter or decide if someone goes home or to a jail cell.
Even after the incident, there can be problems with a party’s public statements and how they might affect the outcome in a courtroom. With people addicted to constant sharing of every thought and feeling, can attorneys keep clients from musing online about the case?
“You can try,” Miller chuckles. “You can sure try.”
‘It is out there’
Alan S. Mandel, a former president of the Missouri Association of Trial Attorneys puts it directly.
“In the proper circumstance, Facebook or social media posts could be devastating to a case,” said the partner at St. Louis’s Mandel, Mandel, Marsh, Sudekum, Sanger.
He noted that he always cautions clients to avoid posts about the matter and he is also careful to ensure that staff surf through social media messages to look for anything that might create a problematic surprise. In civil cases involving personal injury or workers compensation matters, Mandel said it can be devastating to show an allegedly injured person in engaged in strenuous recreational activities or simply leading an active, happy lifestyle.
Still, he feels it can also have the opposite effect. In one recent personal injury matter, he recalled the defense introducing photos from his client’s wife’s social media page and then watching as jurors shook their head disapprovingly.
“It totally backfired,” he said. “I think if you are going to use social media posts to try to impeach a witness…it better work. It better be good because juries don’t like the invasion of privacy.”
But when it is effective, it can make a big difference. Mandel compares social media material to a “cheap form of surveillance”, a sort of digital outgrowth of the kind of research that insurance companies have long employed private investigators to conduct.
“But now, you don’t really have to pay for it,” he said. “It is out there.”
Vet but don’t tamper
Richard Schnake of Neale & Newman in Springfield handles intellectual property cases and appeals. He noted that unauthorized copying and use of logos can be an issue in IP with social media’s growing prevalence. Even song lyrics or a poem could infringe someone’s copyright though he notes that such matters probably mostly go unenforced.
“The damages aren’t going to be enough to justify filing a copyright lawsuit so you don’t see that very much,” he said.
But the types of matters that could be affected by social media are limitless. Indiscreet photos could change the course of a divorce or certain messages might impact a contract case. Even leaving reviews for a business online could prompt a defamation action.
“If they are not true, you can go file a lawsuit and I’ve seen those things happen,” he said.
And there can be a lot of material to go through. Back in Columbia, Miller notes that the issue is becoming such a wealth of opportunities and pitfalls for legal cases that it can be difficult just to find the time to digest it all – especially when clients may have multiple accounts under multiple usernames.
“You could probably create a position in a law firm just for vetting your clients’ social media,” he said.
But be careful to warn clients against the temptation to vet themselves as some may attempt to rewrite history by expunging posts relevant to the case. Tampering with or destroying evidence is a serious matter.
“You let them know that, ‘Sorry, I know you probably want to go delete this now but you can’t’,” Miller said.
Still, social media can give one advantage to a defense attorney – especially a public defender who may be working with indigent clients whose only link to the electronic world may be a free Internet connection at the local library.
“If they have Facebook I can message with them that way,” he said. “Actually, I have quite a few clients that don’t have the ability to maintain a phone number and Facebook Messenger is the only way I have to get a hold of them.”
Immediacy and permanence
Mikah Thompson, a law professor and associate dean of diversity, equity and inclusion at the University of Missouri-Kansas City School of Law, said that the issue is coming increasingly before the courts.
“Because social media is so huge and everybody’s using it, I think there is more law being made I’d say in that area than we’ve seen in the past,” she said.
The main problems to introduction of social media evidence relate to matters of hearsay and difficulties with authentication.
“How do you actually know that it’s mine?” she said. “How do you know that I wrote it? Like any other piece of evidence used at trial, it would have to be authenticated before it can be shown to the jury.”
Basically, the rules apply just as they might to any other material, such as a written letter.
“The same evidentiary issues that we might deal with with any piece of evidence also might come into play for social media posts or text messages,” she said. “There is nothing that would generally bar them from coming in if all the other hurdles can be cleared.”
But what’s different, Thompson notes, is that letters don’t have the same audience or permanence. A generation ago, a letter might be sent only to one person who may then lose or destroy it. But the Internet means our thoughts can easily live forever among a mass audience of contacts and acquaintances armed with screenshots and backed by the power of cloud-based information.
“Now, it is out there for everybody to see immediately and it doesn’t actually go away,” she said.
Even privacy settings may not save someone from themselves since messages and posts, even to a limited audience, can be potentially discoverable if deemed relevant.
Thompson, who practiced employment law, said that it is standard practice for each side to sift through electronic messages in such matters to look for evidence from either the company or the plaintiff, but that process is no longer just limited to email. It applies to more informal messaging formats between mobile devices as well.
“Everybody understands that that is going to happen in litigation and I think the same is now true for text messages,” she said. “It is just becoming run-of-the-mill.”
Even online personas can be problematic — particularly in criminal cases where violent rap lyrics and imagery of accused defendants are increasingly coming to the fore in high-profile matters. Even if meant as entertainment or a metaphor, such material on a social media page can be used by prosecutors in some cases.
“That is now potentially admissible evidence to show something about who you are, something about your character,” Thompson said.
Meanwhile, other defendants might find themselves in trouble based off of their own communications which pinpoint them in certain locations or engaged in certain activity. While it is not a criminal proceeding, the Jan. 6 committee hearings have often found a starring role for text messages.
“It is so casual,” Thompson said. “People are more likely to make an admission about what they are doing and where they are by way of text more so than by way of email because it is a casual way of conversing.”