What You Say Can and Will Be Held Against You in a Court of Law…

As users of Web 2.0 technologies we have certain expectations of not only who views our posts, but also how those viewers will use them. In today’s digital world though, the idea that what you say is uttered and then forgotten does not exist. What is posted on a friend’s wall or as your status can be used to your detriment, or benefit, in a court of law. Such evidence will have profound effects on our perceptions of online use and how the justice system operates.

Facebook as Evidence in Divorce Court

The most interesting cases of Facebook and Twitter being used as evidence is in cases of divorce. Couples defame each other on others walls, stalk new partners, threaten, and complain about their marital situation freely on these sites. Now though, whatever a person does on these sites is gobbled up by a lawyer and regurgitated to a judge. It is easier now to catch someone in a lie or discredit them for their behavior. An attorney from Missouri states, "We had a custody case where a mom assured the court that she hadn't been drinking, but her MySpace page had actual dated photos of her drinking — and smoking, which is also of interest." The lack of discretion shown by some people is costing them dearly, from their marriages to their children. An issue arises because for many this is a way to express themselves and their feelings on an important event that is taking place in their lives. People going through divorce are usually feeling betrayed, lost, hurt, and angry – all emotions that cause individuals to post things they normally would not. It is interesting to consider the sincerity of some messages though too. By sincerity I mean whether or not these individuals really mean what they say or are just lashing out in a moment of passion. Either way it does not matter because the Internet forever logs that moment and it is permanent, even if taken down.

A Somewhat Different Perspective

In 2008, families denied coverage for their daughters’ eating disorders sued Horizon Blue Cross Blue Shield. The insurance company’s policy at the time stated that mental disorders would be covered only if they were biologically induced. Eating disorders, while considered a mental disorder, are not hereditary and therefore not covered. During the trial, the defense demanded to see the Facebook and MySpace posts of the teenage girls involved. The defense suspected that the girls’ posts would reveal the emotional causes of the disorder; however, the plaintiffs could not produce the posts because they did not exist. In this instance, the defense assumed that all personal information is shared online and that it was free for their use. The presiding judge, Judge Schwartz, ruled in favor of the defense’s request stating, "The privacy concerns are far less where the beneficiary herself chose to disclose the information."

This ruling, however, should be taken with a grain of salt because it is situation dependent. The ruling is highly applicable to the case surrounding the death of 15-year-old Phoebe Prince. Phoebe was a transfer student from Ireland who was humiliated and harassed at school and on Facebook. Girls from her school posted hateful comments on her wall including “Irish slut” and “whore.” She committed suicide in March 2010 as a result of the bullying. Even after Phoebe’s death the girls continued to post mean comments on her memorial page. The posts were used as evidence against them. In this case, the plaintiff needed the posts to show that the harassment Phoebe experienced was inescapable and the girls who bullied her are responsible for her suicide.

In both of these instances, the attempt of using Facebook and MySpace posts as evidence succeeds for different reasons – intent. The girls posted on Phoebe Prince’s wall did not care who knew what they thought about her. It was public knowledge in school and because of the Internet, to everyone else as well. The intent was malicious. Those involved in the case for coverage of bulimia and anorexia, however, had posts existed it would have likely been for therapeutic reasons, an argument made by the plaintiffs against the submitting of the posts. The posts did not exist, however, because an eating disorder is extremely personal and private. Information about it would have likely been to a select few friends, most likely in the form of a message. When we send information to a person, such as writing on their wall, it is inherently expected that that information is for the eyes of the person we wrote it alone. The expansion of the Internet has negated this desire. Messaging a friend is more private because it goes directly to that person and cannot be viewed by their friends, but even these are not sacred.

In 1998, the Justice Department prosecuted Microsoft in an antitrust case. E-mails sent within the company and to other organizations were used against the software company. The government, however, only used bits and pieces of the e-mails, taking them out of context to make their case. This brings up an additional problem with the use of media like Facebook and MySpace in trials – it can be misconstrued and edited to fit the needs of whoever wants to use it. This greatly undermines the credibility of the person it is being used against. It also creates issues for jurors who have to sift through the information and attempt to see if it is revealing the whole truth. This limits the justice system’s ability to give a fair trial.

The Judicial System

The relationship between jurors, social media and fair trials is a rising concern in the legal world. Many trials are being thrown out as a result of jurors using the Internet to post what is going on during trials and research information about witnesses, defendants, lawyers and the case. Jurors now attempt to further educate themselves to ensure they make the best possible decision. That is how it would seem at least. Information they can be exposed to though can create prejudice against the defendant, such as looking at Tweets they wrote that could be incriminating but was not used as evidence and criminal records. This breaks rules that jurors are not to be influenced by any person or discuss the case and that they be impartial. But at the same time, if like in the Microsoft case, things are being taken out of context, why should jurors not attempt to get the whole story to ensure they made the correct decision? It is a very thin line we’re walking. In all though, I think that jurors should not use social networking sites and the Internet during a trial because it undermines an inherent part of our judicial system – all men are innocent until proven guilty.

Further Considerations

The Internet’s inherent ability to remember everything is what enables evidence from Web 2.0 technologies to be used legally. Is this a good or bad thing? For me it is difficult to say. The ability for people to express themselves freely in public is part of the Constitution, but even within the court system are concerns about whether certain aspects of free speech are truly free. Social norms have an effect on what many of us say and do, but for some those social norms seem to escape them. Additionally, many things that people say and do are momentary lapses of judgment. It is important not to consider one Tweet or photo, but the pattern that is in them. In the divorce case where the lady was caught drinking and smoking was it only in one picture or several? In the case of Phoebe Prince, the pattern was there visible for all to see.

Likewise, it is interesting to think about how the truth is always being twisted in some way to make a case stronger, even if someone is innocent. This can be attributed to our biological tendency to forget. A problem arises though when that information is remembered on the Internet and then chopped, spliced and plastered to mean something else. All evidence presented in a certain way can take on a new meaning. So then does using only segments Microsoft’s e-mail logs really alter the justice that is given in the end? Or does a juror knowing the entire circumstances surrounding a case make a bad judgment as a result? The answer is unclear, but one that needs to be seriously considered by lawyers, jurors, and judges alike.

References

Texts and “tweets” by jurors, lawyers pose courtroom conundrums

Antitrust Case is Highlighting Role of E-mail

Facebook Page? Or Exhibit A in Court?

Facebook and Divorce: Airing the Dirty Laundry

Phoebe Prince Driven to Suicide by Teenage Cyber Bullies

Functions and Duties of a Juror

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