Crimes that Involve Social Media

No, we're not talking about the ubiquitous spamming that should be made a crime; we're referring to real crimes.

Winding down my court appearances for 2012, I am struck by the number of criminal cases I had this year that involved social media.  Either the crime started with a social media component, or involved some evidence gleaned from a social media platform.

One 19-year old defendant struck-up an electronic relationship with a girl on the tagged.com web site.  Problems arose when, at her insistence, he met her in the real world and, again at her insistence, had real-life sex.  She looked all of 17-years old, but was in fact, only 14.  A criminal sexual conduct charge followed.

 

In another case, one of our probationers was violated for allegedly consuming alcohol.  When we showed up in court on the hearing, her probation officer treated us to pictures of the young woman with a glass of beer in her hand, provided to the PO courtesy of one of our client’s FB “friends” who also was on probation and was looking to bargain herself up the food chain.  The two are no longer friends.

In a third case, a young 17-year old tech-savvy client found his way onto a few peer-to-peer networks.  Some of these networks had been outfitted with the trappings of social media in order to attract young web surfers.  Problems for this young man arose when some of the pornographic images he downloaded, then shared, contained child pornography.  By allowing them to remain on his laptop, and by continuing to participate in the peer-to-peer network, he attracted the attention of the ever-vigilant federal child porn task force and became the subject of a law enforcement raid on his home.  He is now charged with several counts of possession and distribution of child pornography, fighting to stay clear of a prison cell.

Moral of the story: what you do on-line is similar to doing something in public.  On most of these sites, you are not cloaked in any expectation of privacy; especially when you are breaking the law.

As in public, when on-line, respect and obey the law.

www.clarkstonlegal.com

info@clarkstonlegal.com

Social Media Not Mixing with Jury Trials

It took some time, but now the cases are starting to pile-up.  This week's WSJ treats us to a summary of recent "social media" eruptions in the jury trial context.

The basic problem: a jury trial is conducted in accord with the applicable rules of evidence, court rules, and statutes.  When jurors log onto the Internet to obtain additional information [about the parties to the suit, the lawyers, or the judge], or to comment, they are exposed to data and opinion beyond the scope of the applicable rules.  This can and does affect the outcome of a trial.

The case highlighted in the WSJ was a 2010 murder conviction overturned, in part, because a juror ignored the admonishment of the judge, and tweeted the jury's verdict to the public prior to it being read in court.  Now, the defendant will stand trial again this summer.

In other courtrooms, despite explicit instruction from the trial judge that jurors must not discuss the case among themselves until the proofs are complete and they are formally deliberating, jurors have been known to exchange contacts and begin texting one another.

A Florida juror recently spent 3-days in jail for "friending" a defendant on Facebook so he could either get a date with the woman, or get out of jury duty.

A case in the California appellate courts hinges on whether a juror in a case must now disclose his social media activity to defense attorneys in a gang-beating case so the attorneys can determine whether to challenge their client's conviction based on the juror's social media activity.

Judges have a range of options when juror misconduct mars an ongoing trial.  Those options include: punishing the juror for contempt (i.e. jail or a fine); removing the objectionable person from the jury (there is always at least one alternate); and declaring a mistrial and starting the trial over.

The WSJ article cites to a potential test case: the Drew Peterson case in Illinois.  In that case, defense attorney Joel Brodsky is considering ways to prevent jurors from acquiring information about the case outside the courtroom.  One idea under consideration is for the jurors to disclose their IP addresses and social media handles so they can be monitored.  Along these lines, technicians are suggesting the installation of cookies so that if a juror accesses the Internet about the case in any way, the juror's foray is reported to the trial judge.

Can the centuries-old jury trial system withstand such developments?  Is there any effective way to prevent seated jurors from accessing the media about the case to which they have been entrusted?

As litigators, we here at the Law Blogger realize this truly is a "Brave New World".  When you ramp-up for a trial, and focus on the scope of the evidentiary issues in the case, it is very unsettling to think that, with a few points and clicks, a juror can unearth a veritable treasure trove of [inadmissible] information about you, your client, or your case. 

In almost every case, such additional information will sway the juror's opinion and somehow affect the outcome.  Turning a trial into a popularity contest is not a fair way to administer justice.

www.clarkstonlegal.com

info@clarkstonlegal.com