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.

HR & Social Media: Protected Class Guide

You can’t unring the bell … why put yourself (or your company) in a potentially sticky situation when it comes to hiring and the use of social media as part of the hiring process?

HR departments are using social media as a tool for potential employee research, though this has been one industry that is slow to warm up to the idea. In some cases, it may simply be that the company doesn’t have enough manpower or time to devote to another task; for others, they may see it as a still very grey, muddy area they don’t want to get involved in.

Part of the fear is knowing what’s okay and not okay to see, and how to make sure your hiring managers are only seeing the “right” content. There are many ways to work around this, including using a third party vendor or making sure that the person doing the social media research is not the hiring manager; by doing this, you can make sure that your company is in compliance with the FCRA.

Did you know there are federal and state specific protected classes? If your company spans the country, are you aware of the different classes?

Here are some interesting examples:

  • Whether a candidate obtained a GED vs graduating from high school is a protected class in PA
  • Place of birth is a protected class specific to VT
  • Height & weight is protected in MI
  • The following states only follow federal statutes and do not have any state specific protected classes: AL, ID, MS, SC

These are just some of the protected classes; while these may seem like areas that would not come to light when viewing a person’s social media sites, it’s possible. And what about the more commonly shared pieces of information, such as marital status, whether or not someone is a parent, or mental illness history? You never know to what extent people share their lives online anymore; it’s best to err on the side of caution.

If you are handling social media background checks internally, we’d like to share a list of protected classes at the federal and state levels.

Federal

  • Age (over 40)
  • Color
  • Disability
  • Genetic Information
  • Military Status
  • National Origin
  • Race
  • Religion
  • Sex (includes pregnancy)
  • Veteran Status
State
Protected classes vary by state. Click here to see the state by state list of protected classes

 

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?