Facebook & Courtroom Credibility, Pt 2

Criminal defense attorneys and civil litigants can get court orders and subpoenas for officers' social networking pages even when they're private or deleted. Jurors are checking out officers online in Wi-Fi court buildings. Val Van Brocklin discusses...

Previously on Officer.com

Last month in Facebook & Courtroom Credibility - PT 1: What's your online reputation? (link below) we looked at a real officer who lost his credibility in a criminal trial based on locker-room bravado (and admittedly stupid) comments he'd posted online that weren't related to the case in which he was testifying. The defendant was acquitted of a felony gun charge that otherwise looked like a sure bet.

This article probes further into how criminal defense attorneys and civil litigants can use officers' own social network pages to discredit them in court.

The criminal defense goes on the offense

As a former state and federal prosecutor, I would often visit the web site for the National Association of Criminal Defense Lawyers (NACDL). I subscribe to "better the devil you know than the devil you don't" so I tried to stay on top of what my adversaries were up to. As a law enforcement trainer and writer, I continue to visit the site for the same reason.

It didn't surprise me to discover that the NACDL is telling defense attorneys how to use social network postings to impeach officers in court. (Link below to It's Time to Level the Playing Field.) The article discusses 3 sources for such evidence:

  • The prosecution.
  • Social networking companies and other people.
  • The internet.

Defense attorneys are being urged to file a motion for early discovery of all Brady material, including electronically stored information. I've discussed the prosecution's Brady obligations in two previous articles found listed on my author's page here on Officer.com. (linked below)

Suffice to say, the prosecution and police have a duty to turn over any exculpatory evidence, including evidence the defense might use to impeach the credibility of testifying officers. Because prosecutors have an affirmative duty to do this, they may be asking officers about information on their social network pages.

Prosecutors may ask about you about such information regardless of your privacy settings. That's because Facebook pages can be hacked. Just ask Mark Zuckerberg, one of Facebook's founders, and Nicolas Sarkozy, the President of France. Hackers got into both their Facebook pages and posted false information. Also, your privacy settings don't keep people you allow on your site from taking your information and posting it on their pages or elsewhere on the internet.

As I prosecutor, I want to know what might be out there that can impeach my witnesses and jeopardize my case. If it could be used by the defense for that purpose, I am then obligated to disclose it.

The NACDL article tells defense attorneys that federal prosecutors are likely to have such information in their possession because the Justice Department is advising its prosecutors to "research all witnesses on social networking sites." The article cites to a DOJ PowerPoint presentation it obtained through a Freedom of Information Act request. Be prepared for state and local prosecutors to do the same research.

Moreover, your department may have cyber-vetted you. Brady obligates the police department to disclose to the prosecution (who then must provide it to the defense) information that could be used to impeach you in court.

The NACDL article acknowledges there are very few cases yet dealing with a court issuing subpoenas to social networking companies and non-party witnesses (those people you have friended, for example). The article nevertheless urges that such subpoenas could be a powerful tool for the defense and provides guidance on how to obtain them under the Federal Rules of Criminal Procedure.

Lastly, the NACDL urges defense attorneys to independently investigate any witnesses on the internet, including social media sites, and to do routine checks periodically.

Civil attorneys can get lots of stuff, too

DISCLAIMER: I have never practiced civil law. Still, I know officers and their agencies get sued, and I've gleaned some information relevant to our topic from Discoverability and Ethics of Social Media Data (link below).

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