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?

 

How to Find Gang Members On Social Media

Or really any group of people, for that matter. But we are using gang members because the McAfee Institute recently shared a great blog post on this topic to highlight not only ways to easily identify and search for people, groups of people/organizations, or a general topic of interest on social media but also (in my opinion) to showcase the fact that this monitoring can be easily done for public facing social content.

If you recall, I wrote a blog post about the ACLU raising concern with social media monitoring tools, stating that they were used racially to monitor people. That appears to be an ongoing situation, but I thought this article was a great way to showcase how public information can be used.
Reading through the article, you’ll see how the author starts with a simple topic search to see what public results are available; in this case, the name of the gang was used. From there, profiles that use that name in their profile come up as a list of results; while some will be private and not accessible, some will be public. This is where the research begins.

It can be time consuming, but in looking at various profiles on Facebook, one can learn quite a bit about the organization of people who belong to it. This can be done through looking at:

Photos: looking for tattoos that are known to identify gang members, hand signals/gestures, or other group identifying features in an individual’s photos.

About: some will publicly display their affiliation, while others will use language that is specific to the gang they belong to. Knowing what to look for can provide helpful clues.

The “More” tab: in this section is where “check ins” and events are noted. You can also see other organizations, groups, or people the individual likes, follows, or participates in.

By taking a look at several profiles, you will likely find common terms used, who tends to participate in events, and even find check in locations that are a common thread among gang members. This can be extremely useful information, and, while tedious, can be used to keep communities safe.

 

Is Smart Technology Next?

 

Back in 2007, when social media first took off, monitoring social content started to come into play. As it progressed, so did monitoring techniques and uses. Retail brands find value in social data, as do HR departments, and even law enforcement. Recently social media monitoring has made the news, with the ACLU speaking out against monitoring used by law enforcement to track and identify potential threats. The ACLU maintains that this is not used solely for the purpose of tracking and identifying threats, but instead to profile certain groups of individuals. If you read my prior post on why I think the ACLU is wrong, you’ll know I strongly disagree with their opinions.

When I saw the news about smart technology recordings potentially being used as evidence, I wondered how the ACLU (and the general public) feel about this if there are such grave concerns about monitoring public social content. If you haven’t heard, police in Bentonville, Arkansas are asking Amazon to release recorded data from a murder suspect’s Echo – they served Amazon with a warrant to turn this over. At the time of this writing, Amazon has turned over the suspect’s account detail, including purchase history, but has refused to turn over recorded data.

It’s an interesting turn of events, and one that I believe will spark new laws and regulations, much like the controversy of unlocking an iPhone found earlier this year related to a terror incident.

So, will smart technology serve as a stream of potential evidence? It’s unclear exactly what is recorded with such devices, but in the case of Amazon’s Echo, it’s likely some content is recorded – after all, it has to “listen” for the command to start actively listening.

It doesn’t just stop with these speaker devices either – in the story of the murder suspect, police have also looked at his “smart” water meter – with that data, they were able to determine that there were 140 gallons of water used between 1am and 3am on the night of the murder. Police may presume that water was used to clean up evidence, and this data seems as though it was easily obtained.

This is an entirely new ballgame and very different from social media monitoring. If these smart devices have random recordings of private conversations, it opens up a whole new can of worms. Do the one and two party consent laws apply to smart devices? Can private conversations in one’s home be used as evidence? Do the manufacturers of these smart products have an obligation to turn over such data under a warrant?

Just like social media content, this is going to be a tricky, murky area that will take quite a bit of time to iron out. I anticipate it will be more difficult to set standards than it was with social media – after all, social media standards and laws surrounding its use are still being ironed out over a decade later.

How do you feel about this? Is this too much, or is it a necessary, useful tool to help law enforcement and even the government solve cases and mitigate potential threats to the general public? We’d love to hear your thoughts – feel free to share your thoughts below.