Litigation Archives

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.

Lawyers: Don’t Be Sideswiped By Social Media

When taking on a new client, one of the first things that is done during the interview/discovery process is asking your client about his/her social media accounts and habits. It’s good to be aware of what they have online, as this can easily be used as evidence if the case goes to trial.

Your new client may or may not be totally forthcoming with this information; your hope is that they disclose as much as possible so you can help them. But what if they’re not completely aware of what’s online about them, either posted by others or an account created years ago that has been long forgotten?

This is where a strong social media background check is needed. Utilizing such a service can help you uncover any public facing online content surrounding an individual or group of individuals. What does a social media background check tell you?

- A full scope of your client’s social media/online presence – pull any public facing information so you know what’s out there and what may need to be done to “clean up” a social account if necessary

- Uncover potentially damning information and/or accounts your client has forgotten about that may be relevant to their case

- If a client’s situation may result in a trial, it’s good to expand the social media background check to those involved in the case, whether it’s witnesses, a plaintiff/defendant, or other key players. The more you know ahead of time, the better prepared you will be.

When thinking about a social media background check, most people automatically think of Facebook, Twitter, Instagram, etc. However, a background check scans all of the internet and can find additional information, such as:

- Participation in online forums/message boards

- Blogs or comments written by your client on blogs or in response to online articles

- Amazon wish lists (if public)

- News articles/online public notices specific to your client, which may include information about past legal issues

- Content that other people have posted about your client

Social media can be invaluable when helping a client. It can also lead to surprises you don’t want to find out once it’s too late. Adding a social media background check to your practice can help uncover useful information to best serve your client – after all, who wants to get sideswiped?

Why I Disagree With the ACLU

By now you may have heard the news swirling around about the ACLU obtaining records regarding social media data collected through Geofeedia, a social media surveillance company. The claim is that the company allowed law enforcement to target protesters and activists “of color” and thus is a civil rights violation. In response, Twitter and Facebook have revoked Geofeedia’s access to API and data collection methods.

This has sparked attention on the topic of social media content and privacy. We’ve been down this path before, but not quite like this. As more information comes to light, it should come as no surprise that this is one of many tools that law enforcement uses. While the ACLU states that the intent is to target protesters and activists, somehow potentially trying to turn this into a racial argument, they could not be more wrong.

Similar to other surveillance tools, law enforcement and other agencies are using location based social media monitoring to identify potential issues BEFORE they become a situation. The same type of monitoring is also used by marketing companies and brands in order to better understand their customers, monitor service levels at their locations in a real time manner, and enhance their marketing techniques. It doesn’t seem that the ACLU knows this, or cares that consumer civil rights may be violated too (in their opinion).

Fact is, this is the world we live in. Public data, and that is exactly what is obtained through social media monitoring sites, is just that – public. This content is readily available to anyone looking – the software programs out there (and there are more than just Geofeedia) make the process easier. They are not doing anything differently than someone taking an extensive amount of time manually searching across social sites.

If you really think about it, aren’t we lucky that there are people out there, criminals and people with intent to do real harm to others, who are stupid enough to share their plans publicly? If it’s out there, it can be identified and hopefully handled before it’s too late. If a person is posting content publicly, it is out there for the world to see; there has been enough social media education for the general public to know that, if they don’t use privacy settings, they are revoking their right to privacy by posting on public sites.

We’ve seen protests become ugly, not necessarily by the protesters that originally organized event, but instead by “professional protesters” who have the goal of inciting violence with looting, physical violence, or the like. If this can be averted, wouldn’t you want it to be? Protesting is one of our rights, and that is how it should be. Violence is not one of our rights, and having a means of proactively finding potential threats is important.

If you are one that agrees with the ACLU, think of the last mass shooting or other terror related event – what’s the first thing that people turn to in an attempt to learn more about the person involved? What did you hear first? Questions such as, “Did they post anything on social media? Were there clues that could have prevented this?” And then, if there was content that should have raised a red flag, the public angrily asks “What wasn’t this caught before it happened?” Pretty hypocritical, if you ask me.

Social media comes with responsibility, and a certain amount of loss of privacy. It is what it is. However, social sites have worked to create privacy filters so that the general public can share content within their comfort level of privacy. If people do not use these filters, then they are indirectly allowing their content to become public information.

It’ll be interesting to see how this progresses, but I do not believe the ACLU has a leg to stand on in this case. I think Twitter and Facebook made a reactionary decision based on public pressure, but I don’t think this is the end of social media monitoring.

Can Social Media Content Be Used in Trial?

Social media content is now being used for more than sharing with friends and family – its use has grown, and it has already made its way into the courtroom. There has been a lot of discussion around the use of social media content as evidence in a trial – while it is becoming more commonplace, there are best practices and things to be aware of when doing so.

A recent article discusses the fact that social media content will play a key role in proving a Houston area man was in fact attempting to provide support to ISIS. The article shows that Facebook posts, as well as messenger conversations may be brought as evidence. Typically, public facing information is just that – available to the public. Facebook messaging conversations are private, however, and fall into a more gray area.

So, what is and is not okay to use as evidence?

This is still a murky area, but there are some best practices evolving, especially centered on what type of content and how that content is found. Here are some highlights:

Keep it focused on public information: users are given opportunity to control their privacy settings, whether they realize it or not. Therefore, whatever is public facing, meaning it is easily found through a Google search, for example, seems to be fair game in the investigative process.

Find the content using the proper channels: there is a difference between finding public content and obtaining content that is behind privacy filters under the guise of “friending” someone on a social network. By becoming a connection with someone on a social network, it often times means you will have access to content that is not available to the general public, Should this come to light during a trial, and you are using this content as evidence, it may get thrown out. This also applies to friends and family members becoming connections with others on social media sites for the purpose of gathering content on your behalf.

Back up your evidence with evidence: in order for social media content to be considered relevant and useful in a trial, it has to be authenticated. Specifically, courts will look at the metadata behind the post – the who, where, when, and how the content was posted and discovered. Many social media monitoring tools, especially those geared toward working with law enforcement, lawyers, and the such will provide metadata information as part of the file. This will easily show when the content was created, the author, and potentially any modifications to the post. This metadata support will greatly assist in assuring the court that the content was not altered in any way prior to being presented as evidence, and that the content was in fact that of the author in question.

Despite social media being around for several years, this is still new terrain; following standard rules of evidence will help gauging the use of social media content. I anticipate the courts will also focus on more standards with this arena of evidence as well in the coming years, making its use more clear as evidence in a trial.

Social Media: 1st Amendment Vs. Company Discretion

When it comes to social media, it can get tricky for businesses. When companies utilize social media to engage with customers, they always run the risk (and often deal with) negative comments. Some of it is warranted, and some of it not so much. The tried and true advice has been to not delete the content, and, when applicable, to address the issue publicly to show strong customer service.

However, a company does have a right to monitor comments, much in the way that message boards and forums pose the disclaimer that they have that right. Has a company been sued over this?

It appears that this recently happened. Earlier this month, the City of Beech Grove and the Beech Grove Police Department recently shut down their Facebook pages due to a lawsuit related to limiting freedom of speech.

So what happened?

The ACLU filed a lawsuit in late June on behalf of two women who say their Facebook posts were deleted by the police department. They also claim they were subsequently blocked from posting on the page.

The women claim this is a violation of their First Amendment Rights.

The City of Beech Grove states that the women posted content and/or questions on the police department’s page that were unrelated to crime or similar content, which was the purpose of having the Facebook page.

This is an interesting suit, and I will be watching to see how it plays out. The ACLU believes that people have the right to post any content they’d like on a Facebook page; the city believes that people have the right to ask questions and post negative content, though as it relates to the scope of the page. They do not believe that people should be limited with regard to their criticism, but instead state that there are other Facebook pages the city offers for people to offer more generalized comments, questions, and opinions.

Maybe they should not have removed the posts. The other option could be to reply to the posts with a link to the appropriate page to pose their question to. According to sources, the Facebook page in question did include a disclaimer as to the page’s purpose back in June:

“This Facebook site was created to pass on information to you and to try to keep you informed as to what is occurring in our City. We will not entertain negative comments towards anyone, nor will we host arguments between individuals. We do not care who you are, we are trying to inform you. If you decide to make unpleasant comments we will delete you.”

I don’t believe the lawsuit will win in court; there is free speech, thanks to the First Amendment, but there is also a responsibility of social media users to follow a page’s or site’s terms of service. Not unlike a message board or forum, unrelated content is routinely removed; if, in fact, the women who are suing posted content that went against the purpose of the Facebook page, the city had a right o remove it. However, in the name of customer service, it might have been better to address it with the women rather than simply delete without reason. At any rate, I do not think this will hold up in court.

What do you think? Please share your thoughts in the comments below!