Social Media in the Courts

1. Social Media in the Courts Kevin Emas Judge, Third District Court of Appeal Miami, Florida emask@flcourts.org

2. Overview • Prevalence of social media in our lives • Social media as an investigative tool • Law enforcement • Pretrial discovery in court cases • Background information on witnesses & jurors • Use of information from social media to prove or defend a case in trial • Misuse of social media in court Social Media in the Courts November 6, 2012

3. Social Media is Everywhere Social Media in the Courts November 6, 2012

4. Trends in “Non-Social” Use of Social Media • College and Grad School Admissions • HR and Prospective Employers • Law Enforcement Investigation • Civil cases • Criminal cases • Divorce cases • Misuse by jurors Social Media in the Courts November 6, 2012

5. Social Media in the CourtsAn Investigative Tool Sun Sentinel Article: August 11, 2011 “Undercover Wildlife Officers Use Facebook, Social Media to Catch Poachers” Social Media in the Courts November 6, 2012

6. Social Media in the CourtsAn Investigative Tool “After spearing a snook in the Intracoastal Waterway in June, Brian Spuler proudly posted photos of his catch on Facebook. Days later, he was arrested and fined $350. Florida wildlife officials have gone undercover on Facebook and other social media sites to catch poachers like Spuler showing off pictures of their illegal catch. And it often is the lawbreaker's online friends who get a cash reward for tipping them off.” Social Media in the Courts November 6, 2012

7. Social Media in the CourtsAn Investigative Tool The Sydney Morning Herald Article: July 13, 2011 “A new US law-enforcement tool: Facebook searches” Social Media in the Courts November 6, 2012

8. Social Media in the CourtsAn Investigative Tool US law-enforcement agencies are increasingly obtaining warrants to search Facebook, often gaining detailed access to users' accounts without their knowledge. A Reuters review of the Westlaw legal database shows that from 2008-11, federal judges have authorized at least two dozen warrants to search individuals' Facebook accounts. Many of the warrants requested a laundry list of personal data such as messages, status updates, photographs, "Wall postings" and "rejected Friend requests". Social Media in the Courts November 6, 2012

9. Social Media in the CourtsAn Investigative Tool • Police conducting search incident to a valid arrest may search (without warrant) contents of cell phone found on arrestee • Think of phone as “electronic backpack” • Search may include texts and photos • Online social media search? Fawdry v. State, 70 So. 3d 626 (Fla. 1st DCA 2011); Smallwood v. State, 61 So. 3d 448 (Fla. 1st DCA 2011) Social Media in the Courts November 6, 2012

10. Social Media in the CourtsPretrial Discovery Tool • Your posts on social media are generally not privileged • There is no “reasonable expectation of privacy” if you make this information accessible to others online, even if on a restricted basis • Facebook Principles and Terms of Service • Even if you “take it down” from the site, once it’s out there, it’s out there (somewhere) forever Social Media in the Courts November 6, 2012

11. Social Media in the CourtsPretrial Discovery Tool • Example: Plaintiff injured in auto accident • Resulting back injury and loss of enjoyment of life or restricted mobility Facebook photo posted two weeks after accident Accompanied by tweet: “Bowled my highest game ever tonight!” Social Media in the Courts November 6, 2012

12. Social Media in the CourtsPretrial Discovery Tool • Where a party’s physical condition or mental state is at issue: • “It is reasonable to expect severe emotional or mental injury to manifest itself in some social media content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress.” • EEOC v. Simply Storage Management, 270 F.R.D. 430 (S.D. Ind. 2010) Social Media in the Courts November 6, 2012

13. Social Media in the CourtsPretrial Discovery Tool Miami Herald Article: October 19, 2012 “Judge: Zimmerman Defense Can See Martin Social Media Records” Social Media in the Courts November 6, 2012

14. Social Media in the CourtsPretrial Discovery Tool “A judge ruled Friday that attorneysfor a Florida neighborhood watch volunteer can inspect the school records and social media postingsof the unarmed teenager he is accused of murdering. Judge Debra S. Nelson said that defendant George Zimmerman's attorneys need to know whether Trayvon Martin's school records and social media postings give any evidence that he had violent tendencies. Nelson ruled that the defense can subpoena the Twitter and Facebook accounts of Martin. “ Social Media in the Courts November 6, 2012

15. Social Media in the CourtsProof in Court Examples: • Cyberstalking and cyberbullying • Divorce/Child custody cases • Proof of negligence (e.g., prove other driver texting at time of accident) • Punitive damages claim (texting while driving) • Disprove alibi defense in criminal case Social Media in the Courts November 6, 2012

16. Social Media in the CourtsProof in Court • Divorce Case: Appellate Court approves father’s use of mother’s MySpace postings to establish mother’s sado-masochism, pagan tendencies, and illicit drug use to establish father should be awarded custody of their child. • Dexter v. Dexter, 2007 WL 1532084 (Ohio App. 2007) Social Media in the Courts November 6, 2012

17. Divorce Case: Ex-wife seeking alimony from ex-husband because auto accident rendered her disabled and unable to work at any job • Ex-husband able to use ex-wife’s Facebook postings to show wife takes belly dancing lessons several nights a week. • Wife would not post any photos of her belly dancing, stating on her page: “Gotta be careful what goes on line. The ex would love to fry me with that.” • B.M. v. D.M., 927 N.Y.S. 2d 814 (N.Y. 2011) Social Media in the Courts November 6, 2012

18. Social Media in the CourtsProof in Court • Criminal Case: • Evidence that defendant sent Facebook “friend request” to 16-year old daughter of ex-girlfriend sufficient to establish that defendant violated domestic violence injunction prohibiting him from having direct or indirect contact with ex-girlfriend. • Hall v. Ryan, 2012 WL 3822154 (Fla. 3d DCA, Sept. 5, 2012) Social Media in the Courts November 6, 2012

19. Other Uses of Social Media in Court • Stating your case through social media • Spontaneous or continuous “press conference” • Background check of witnesses • Background check of judge, opposing counsel • Background check of jurors or prospective jurors Social Media in the Courts November 6, 2012

20. Social Media in the CourtsMisuse and Abuse in Trial A judge has no “friends” • Domville v. State, 2012 WL 3826764 (Fla. 4th DCA, Sept. 5, 2012) • Judge should have disqualified himself on defendant’s allegation that because prosecutor was a Facebook “friend” of the judge, defendant had a well-founded fair he would not receive a fair trial. Social Media in the Courts November 6, 2012

21. Social Media in the CourtsMisuse and Abuse in Trial • Jurors Posting and Tweeting During Trial • Nationwide research reveals at least 28 verdicts were overturned or new trials granted (21 in last two years) for jurors using social media, blogging, or internet sites during jury service Social Media in the Courts November 6, 2012

22. Social Media in the CourtsMisuse and Abuse in Trial • Judge in Michigan fined juror for posting comment on her Facebook page– before the defense had presented its case– that she thought the defendant was guilty. • Arkansas Supreme Court in 2010 overturned murder conviction and death sentence and ordered new trial because of one juror’s repeated Tweets during trial Social Media in the Courts November 6, 2012

23. Social Media in the CourtsMisuse and Abuse in Trial • Closer to Home:In April of 2012, a Miami man sought a new trial in armed robbery case because jury foreman sent Twitter and Facebook messages to followers during trial. Example of his tweets: “Live tweeting jury duty. Until battery dies. Or a judge holds me in contempt. Whatever comes 1st. Joking, your honor!” Social Media in the Courts November 6, 2012

24. Social Media in the CourtsMisuse and Abuse in Trial Instruction to Jurors At Start of Trial “I want to stress again that just as you must not talk about this case face-to-face, you must not talk about this case by using an electronic device. You must not use phones, computers or other electronic devices to communicate. Do not send or accept any messages related to this case or your jury service. Do not discuss this case or ask for advice by any means at all, including posting information on an Internet website, chat room or blog.” Social Media in the Courts November 6, 2012

25. Social Media in the Courts The end… Social Media in the Courts November 6, 2012