Two Cases of Social Media Gone Wrong in Court

 

Social media content is being incorporated into trials across the world, and the legal system is still trying to determine how to best allow this, what’s legally able to be used as evidence, and other aspects of how social media is/can be used in court. As this is being hashed out, social media continues to impact the legal system in a variety of ways. The following two examples were recently noted in the news; one shows how a judge can be impacted by social media and the other shows how social media content can result in a mistrial.

Mistrial due to social media content

Last month, the Monitor published a story about a high profile, gang related trial that ended up being declared a mistrial. Why? A witness that had testified for over two hours and was given explicit instructions to not talk about the case did exactly that on social media only hours after testifying. According to the article, the witness admitted to posting articles and comments about her testimony after taking the stand, and a social media post she published stated that she had ingested Spice (synthetic marijuana) prior to testifying in court. Despite the witness claiming that she did not post this statement, it was allowed to be used in court and was considered in the decision to declare a mistrial.

This case is interesting in that it shows that what a witness or even juror posts can be used as evidence in court. However, there are methods that need to be used to appropriate capture and memorialize the content that a lawyer wishes to use as evidence – the “rules” are still murky but are being developed quickly across the country.

It also highlights the importance of monitoring social media during a trial, both for general content and for individuals involved in the trial, whether it is a juror or witness, to ensure that instructions are being followed to avoid situations such as the one above.

Judge are recused from case due to social media content

The Chicago Tribune published an article related to an Indiana case in which three judges have recused themselves, citing a potential conflict of interest from both attempted conversations on social media and phone calls, as well as visibility of social media content that may have been seen regarding the upcoming trial. One of the recused judges made a statement about her decision:

“Prior to the transfer of the above causes of action from Judge Julie Cantrell, this court overheard several attorneys discussing these cases in detail and saw several social media posts that create a conflict of interest.”

Another judge stated:

“Numerous uninvited ex-parte communications have occurred or been attempted through social media and telephone calls to influence this court,” Cantrell wrote in her order to transfer the case, saying the transfer was necessary to avoid the appearance of impropriety.”

The case has been assigned to a fourth judge, and as of this writing it is unclear whether that judge will hear the case.

This illustrates how social media can impact high profile cases, both from the stance of a judge being able to hear the case without possible conflict of interest as well as from the perspective of finding an impartial jury. Social media makes it much more difficult to find local residents who are completely impartial and have not read or heard about some high profile cases.

Social Media in Court: A Look Back at Casey Anthony & Scott Peterson

I’ve often wondered what the OJ Simpson trial would have looked like had social media been a “thing” at the time – that was an extremely high profile case that would have likely blown up social media.

The two high profile cases that were “firsts” really as far as the boom of social media include the Casey Anthony case, the young woman acquitted in her toddler’s death in 2007 and Scott Peterson, who is currently on death row for the death of his wife and unborn son in 2002. Both trials stuck with me, partly because I kept tabs on both trials, especially the Casey Anthony case, where the public had full view of the search for Caylee, the videos of the conversations between family members, and the day to day trial news.

From a legal perspective, these cases are interesting for another reason – both were influenced by social media, even though it was in its infancy at the time. Thinking back to those trials and looking at how impactful social media has (and will) become in court is fascinating.

In the Casey Anthony case, the defense lawyer hired a jury consultant who monitored social media to gauge perception and, more interestingly, help the lawyer as he presented his case. After the trial was over, it came out that the trial consultant actually monitored the online conversation and encouraged Casey’s lawyer to go easier on his questioning of Casey’s father, George. The online sentiment was negative, and showed that the public felt he was being too harsh on the father. The lawyer listened and changed his game plan. According to Amy Singer, the jury consultant, “Social media was the difference between winning and losing.”

Scott Peterson’s case was a bit different. Social media was still very new, and wasn’t likely used as it was in the Casey Anthony trial. However, on recently watching a show that recapped this case, it came out that there is an appeal set to expire at the end of the year. One of the reasons for the appeal? A juror may have lied during voir dire, which they can claim compromised the trial. If the appeal holds, it will be a major event. Personally, I don’t think it will be an issue, but stranger things have happened. Imagine if social media monitoring were prominent back then – this may have been easily uncovered and given the defense one less reason to try to appeal.

So, how has social media evolved since then?

There is a wealth of information that can be taken from social media, and it is being used more and more by investigators, lawyers, and jury consultants. I’d still consider it in its infancy, but I fully expect this will be commonplace across the board in the next three to five years.

In case you’re having a hard time keeping up, here are some ways social media is being used in the legal industry:

Social media background checks/investigations: used as a source of supporting information, there are now pretty in depth social media background checks available to lawyers and investigators. The name is slightly misleading though – while some providers do only focus on social media, most are starting to provide a variety of content from all public facing online sources. These can be used for a lawyer’s client, a defendant or plaintiff, or anyone tied to a case.

Voir dire: In the Scott Peterson case, having a way to run quick online checks during the jury selection process may have uncovered the juror’s past and immediately made her ineligible to serve as a juror. Some states allow for a list of potential jurors to be available prior to voir dire, and others do not. In either case, social media/online research services are available for this purpose.

Jury monitoring: Keeping jurors from posting to online sites during a trial can be a tricky process. They are given the instructions at the onset of the trial, but how can you ensure they are adhering to it? Using social media monitoring of the individuals sitting on the jury can be beneficial, as can geolocating monitoring. Put a fence around the courthouse, a hotel if the jury is sequestered, and and monitor online content being posted throughout the trial.

Witness/evidence content for trial: People now serve as novice journalists – how often do we see a situation unfold and it’s followed by several witness accounts, posts, and videos? This can be cruical information for a trial or case. By utilizing a service that will scan for mentions of the incident as well as location based monitoring that can go back to a recent time when the incident happened, it may allow lawyers and investigators to find & identify witnesses or obtain details/video that will help immensely.

This is still a new technology as far as the legal/investigative industry is concerned, and the “rules of the game” are still being defined and made into law. However, this cannot be overlooked – the content that you may uncover can be the one thing to help win your case.