Social Media in the Courts Kevin Emas Judge, Third District Court of Appeal Miami, Florida...
25
Social Media in the Social Media in the Courts Courts Kevin Emas Kevin Emas Judge, Third District Court of Judge, Third District Court of Appeal Appeal Miami, Florida Miami, Florida [email protected] [email protected]
-
Upload
malakai-riggles -
Category
Documents
-
view
219 -
download
0
Transcript of Social Media in the Courts Kevin Emas Judge, Third District Court of Appeal Miami, Florida...
Social Media in the CourtsSocial Media in the Courts
Kevin EmasKevin EmasJudge, Third District Court of AppealJudge, Third District Court of Appeal
Miami, FloridaMiami, Florida
[email protected]@flcourts.org
OverviewOverview 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
Social Media is EverywhereSocial Media is Everywhere
Social Media in the Courts November 6, 2012
Trends in “Non-Social” Use of Trends in “Non-Social” Use of Social Media 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
Social Media in the CourtsSocial Media in the CourtsAn Investigative ToolAn 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
Social Media in the CourtsSocial Media in the CourtsAn Investigative ToolAn 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
Social Media in the CourtsSocial Media in the CourtsAn Investigative ToolAn Investigative Tool
“A new US law-enforcement tool:
Facebook searches”
The Sydney Morning Herald Article: July 13, 2011
Social Media in the Courts November 6, 2012
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 CourtsSocial Media in the CourtsAn Investigative ToolAn Investigative Tool
Social Media in the Courts November 6, 2012
Social Media in the CourtsSocial Media in the CourtsAn Investigative ToolAn 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
Social Media in the CourtsSocial Media in the CourtsPretrial Discovery ToolPretrial 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
Social Media in the CourtsSocial Media in the CourtsPretrial Discovery ToolPretrial Discovery Tool
Example: Plaintiff injured in auto accident Resulting back injury and loss of
enjoyment of life or restricted mobilityFacebook photo
posted two weeks after accidentAccompanied by
tweet: “Bowled my highest game ever tonight!”
Social Media in the Courts November 6, 2012
Social Media in the CourtsSocial Media in the CourtsPretrial Discovery ToolPretrial 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
Social Media in the CourtsSocial Media in the CourtsPretrial Discovery ToolPretrial Discovery Tool
“Judge: Zimmerman Defense Can See Martin Social Media Records”
Miami Herald Article: October 19, 2012
Social Media in the Courts November 6, 2012
Social Media in the CourtsSocial Media in the CourtsPretrial Discovery ToolPretrial Discovery Tool
“A judge ruled Friday that attorneys for a Florida neighborhood watch volunteer can inspect the school records and social media postings of 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
Social Media in the CourtsSocial Media in the CourtsProof in CourtProof 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
Social Media in the CourtsSocial Media in the CourtsProof in CourtProof in Court
Divorce CaseDivorce Case: Appellate Court : Appellate Court approves father’s use of mother’s approves father’s use of mother’s MySpace postings to establish MySpace postings to establish mother’s sado-masochism, pagan mother’s sado-masochism, pagan tendencies, and illicit drug use to tendencies, and illicit drug use to establish father should be awarded establish father should be awarded custody of their child. custody of their child.
Dexter v. DexterDexter v. Dexter, 2007 WL 1532084 , 2007 WL 1532084 (Ohio App. 2007)(Ohio App. 2007)
Social Media in the Courts November 6, 2012
Divorce CaseDivorce Case: Ex-wife seeking alimony : Ex-wife seeking alimony from ex-husband because auto accident from ex-husband because auto accident rendered her disabled and unable to work rendered her disabled and unable to work at any jobat any job
Ex-husband able to use ex-wife’s Facebook Ex-husband able to use ex-wife’s Facebook postings to show wife takes belly dancing postings to show wife takes belly dancing lessons several nights a week. lessons several nights a week.
Wife would not post any photos of her belly Wife would not post any photos of her belly dancing, stating on her page: “Gotta be dancing, stating on her page: “Gotta be careful what goes on line. The ex would careful what goes on line. The ex would love to fry me with that.”love to fry me with that.”
B.M. v. D.M.B.M. v. D.M., 927 N.Y.S. 2d 814 (N.Y. 2011), 927 N.Y.S. 2d 814 (N.Y. 2011)
Social Media in the Courts November 6, 2012
Social Media in the CourtsSocial Media in the CourtsProof in CourtProof 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
Other Uses of Social Media Other Uses of Social Media in Courtin Court
Stating your case through social mediaStating your case through social media Spontaneous or continuous “press Spontaneous or continuous “press
conference” conference” Background check of witnesses Background check of witnesses Background check of judge, opposing Background check of judge, opposing
counselcounsel Background check of jurors or Background check of jurors or
prospective jurorsprospective jurors
Social Media in the Courts November 6, 2012
Social Media in the CourtsSocial Media in the CourtsMisuse and Abuse in TrialMisuse 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
Social Media in the CourtsSocial Media in the CourtsMisuse and Abuse in TrialMisuse 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
Social Media in the CourtsSocial Media in the CourtsMisuse and Abuse in TrialMisuse and Abuse in Trial
Judge in Michigan fined juror for posting Judge in Michigan fined juror for posting comment on her Facebook page– before comment on her Facebook page– before the defense had presented its case– that the defense had presented its case– that she thought the defendant was guilty. she thought the defendant was guilty.
Arkansas Supreme Court in 2010 Arkansas Supreme Court in 2010 overturned murder conviction and death overturned murder conviction and death sentence and ordered new trial because sentence and ordered new trial because of one juror’s repeated Tweets during of one juror’s repeated Tweets during trialtrial
Social Media in the Courts November 6, 2012
Social Media in the CourtsSocial Media in the CourtsMisuse and Abuse in TrialMisuse and Abuse in Trial
Closer to HomeCloser to Home::In April of 2012, a Miami man sought a In April of 2012, a Miami man sought a new trial in armed robbery case because new trial in armed robbery case because jury foreman sent Twitter and Facebook jury foreman sent Twitter and Facebook messages to followers during trial.messages to followers during trial.
Example of his tweets:Example of his tweets:
““Live tweeting jury duty. Until battery dies. Live tweeting jury duty. Until battery dies. Or a judge holds me in contempt. Or a judge holds me in contempt. Whatever comes 1Whatever comes 1stst. Joking, your honor!”. Joking, your honor!”
Social Media in the Courts November 6, 2012
Social Media in the CourtsSocial Media in the CourtsMisuse and Abuse in TrialMisuse 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
Social Media in the CourtsSocial Media in the Courts
Social Media in the Courts November 6, 2012
The end…
