Tweeters, posters, texters, callers beware: You are creating evidence

Remember the old concern about the insurance company secretly filming you to disprove your injury claim?  Photo: Social Media

WASHINGTON, May 6, 2013 — Social media communication exists for a long, long time, and has the potential to expose everything about you, from how you take out the garbage to your opinions about your child’s choice of friends.

Twitter has about 500 million users, Facebook has about 1.5 billion monthly users, and Instagram photo posts are over 4 billion. Social media and social networking have become one of the top ways we communicate.

Remember the old concern about the insurance company secretly filming you to disprove your injury claim? In today’s world, your communications often provide the evidence, eliminating the need for anyone to secretly film you.

An analysis of today’s world might be that literally everything is recorded, filmed or captured in one electronic form or another.

When issues present in courtrooms, the evidentiary trail from the social media universe is abundant. Over the last decade, or perhaps longer, we have seen this type of evidence used in divulging extramarital affairs, discrediting alibis in criminal cases and revealing the extent (or lack) of a plaintiff’s injuries in personal injury cases. Even trademark infringement and defamation cases have been influenced by social media evidence.

As part of an out-of-court settlement, musician and actress Courtney Love agreed to pay $430,000 to a fashion designer who claimed Love tweeted multiple defamatory remarks about her in March 2009, ruining her reputation and her business.

John France, a bigamist, was discovered by wife #1 when she saw Facebook wedding photos of him and wife #2 at Disney World. France was dressed as Prince Charming and wife #2 as Sleeping Beauty.

Police used Facebook photos to identify Taunee Smith at the scene of the 2011 murder of DeJohn Dammons, leading to Smith’s conviction.

Prosecutors in Arizona used a MySpace profile of Kirk Pressley, Jr. to prove his alcohol consumption, in violation of his probation.

Simply because social media evidence exists does not always mean it will be available for use in a courtroom. The laws governing the admissibility of social media evidence are the same as with any other form of evidence. Generally, evidence must be relevant and authenticated.

Relevant means that the evidence must have a tendency to make the existence of a fact more or less probable that it would be without the evidence. In most courts, judges lean toward admitting evidence even if its relevance is slight.

Authentication basically means reliable. There must be some basis to prove that the evidence is what it is claimed to be. Simply providing a court with a computer printout and proclaiming what it is supposed to be does not prove what it is. There must be a basis, as an example, to prove it is a printout from a Facebook page.

Civil attorneys can attempt to gather social media evidence by use of requests in what is known as the “discovery” stage of a trial, or by use of a subpoena. In the event an objection is made to turning over requested evidence, a judge would decide. Judges do not always grant discovery requests.

A New York judge in a 2011 case refused to grant access to a plaintiff’s social networking accounts because the defendant failed to show that such access would lead to the discovery of relevant evidence. The term often used for broad based requests is “fishing expedition.” Clearly, a party in a lawsuit should not have unfettered access to all information about the other party simply to see if something useful can be found.

Conversely, when discovery requests are specific, courts usually allow access. A request for Facebook postings between certain dates showing photos out of town would likely be allowed if being out of town was relevant.

In criminal cases, if police and prosecutors convince a judge that probable cause exists, search warrants then issued would authorize the search of social media communications. Some Facebook pages are public such that authorities can go ahead and look at the information without ever having to ask the court for anything. 

The Fourth Amendment to the Constitution allows police to search your cell phone as long as it is not an unreasonable search or seizure. The “search incident to arrest” doctrine allows police to search things like your wallet or your purse, because they are “containers.” Courts characterize your cell phone as an electronic container, and anything that’s on it, email, texts messages, and your history of web browsing, are subject to search.

Recall the recent rape convictions of two high school football players in Steubenville, Ohio? This was a prime example of police searching email and text messages for useful evidence.

Understanding the potential disadvantage of social media evidence, one might imagine deleting it would be beneficial. Not so much if the deletion is discovered, and it is highly likely it will be discovered. Frank Gatto, a ground supervisor at JFK International Airport, was injured on the job and sued United Airlines and Allied Aviation Services. During the litigation he was ordered to provide them with access to his social media accounts. He deactivated his Facebook account, which led to its deletion two weeks later. The judge in the case punished Gatto for failing to preserve the evidence, and told the jury that they were free to infer that the content of his Facebook page would have harmed his case.

In Virginia a few years ago, Isaiah Lester was suing for the wrongful death of his wife. You would think he would be depressed, somber, and mourning his wife. Facebook posts showed him otherwise, in a less than sympathetic light, with one photograph showing him wearing a T-shirt proclaiming he loved hot moms while holding a beer can. Lester’s attorney told him to “clean up” his Facebook and MySpace accounts and to delete the photo because “we don’t want any blow-ups of this stuff at trial.” When all of this came out, Lester was fined $180,000.00 and his attorney was fined $542,000.00. His attorney thereafter retired from the practice of law.

The adage “buyer beware” aligns with most of today’s communications. Be aware that everything you post or tweet, every email you send or receive, every digital or cell telephone photograph you take, every web search you conduct, every telephone call you place, all of it, and probably more, is being recorded. Do you watch either of the television shows NCIS or CSI?  While shortcuts are taken in TV land, these programs very closely depict reality.

 

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show, the featured legal analyst for America’s Radio News Network, heard in 165 markets nationwide, and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.

 

 


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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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