How much credence should courts place in the use of social media as evidence?

As more of us become frequent users of social media like Facebook and Twitter, that question on the admissibility of social media evidence in court cases is becoming increasingly prevalent. In a recent case out of Connecticut, a defendant named Robert ELeck wanted to impeach the credibility of a key prosecution witness using social media evidence. A message on the Facebook page of that witness appeared to contradict her testimony that she had had no contact with Eleck, after he was accused of stabbing another teenager at a party.

Though the woman did not deny the postings came from her Facebook account, she testified that she had not written them, instead claiming someone had hacked into her account. She planted enough seeds of doubt that the trial judge in the case ruled the messages inadmissible as evidence, and the Connecticut Appellate Court recently upheld that ruling. This was one of a number of similar decisions made in jurisdictions across the country.

At least one legal scholar thinks this Connecticut ruling places a stricter standard of admissibility on social media evidence than what is required. “You really have to accept the fact that the standard is sufficiency and the standard is a low standard for a purpose,” said Sam Stonefield, a professor at Western New England University School of Law who has written on evidence issues. “If there are problems with the evidence, let the other side bring those to the attention of the jury and let the jury decide. Historically, whenever there’s been a new technology, courts have been wary of embracing that new technology.”

Under the sufficiency standard, evidence is admissible if it is sufficient for a reasonable jury to decide it is what it is claimed to be. While the appellate court did not spell out what steps must be taken to authenticate such evidence, Stonefield says the decision, and others like it, may force lawyers to call in social media providers, sometimes at the state’s expense to debate the admissibility of social media evidence.

While Stonefield says he believes the court made a mistake in its ruling, he added it’s unlikely the content of the messages would have affected the outcome of the trial, which was a verdict of guilty on assault charges.

The appellate court ruled that social media messages are comparable to hand-written statements, which can be forged. When the person said to be the writer denies making the statement, it’s up to the person proposing admission of social media evidence to prove its authenticity.

Attorney William B. Wescott, a partner at the Connecticut firm of Maya Murphy, argued the appeal for the defendant in the assault case. He says the appellate court ruling forces parties to prove a negative. “There’s a general presumption in all of evidentiary law that evidence is admissible, unless there’s a reason to keep it out,” Wescott says, adding, “What’s really implicit in this decision, although not outright stated, is they’re really leaning toward a presumption of suspicion.”

A couple of weeks ago, we posted a blog entitled “Courts Adjust to Social Media,” which dealt with the admissibility of social media evidence in the courtroom. In that post, we told you about a Connecticut Appellate Court ruling which upheld a trial judge’s decision that some Facebook postings were inadmissible as evidence in a case in which a witness was able to plant seeds of doubt as to whether those postings had really come from her. She didn’t deny the postings were from her account, but insisted someone had hacked into that account. This was just one of a series of similar decisions made in jurisdictions across the country, regarding social media postings as evidence in the courtroom.

In this blog, we would like to continue reviewing the use of social media in the courtroom. We will focus on the increasingly problematic use of social media by jurors, defendants and victims.

The families of both defendants and victims are now creating Facebook pages about cases; gang members have taken to social media in an attempt to menace witnesses; and journalists are tweeting and texting from courtrooms during trials. The use of social media in court is becoming increasingly prevalent.

Courts around the country are working hard to update their policies on using social media in the courtroom. A Tucson attorney and jury consultant, Rosalind Greene, writes about the usage of social media in the courtroom. She recently discussed a study which found that, between 1999 and 2010, at least 90 verdicts were appealed across the country because of Internet or social-media gaffes; 28 of those were overturned, and half of those appeals happened in 2009 and 2010.

Courts around the country are updating their policies on social media usage in court. Here in Arizona, the State Supreme Court formed a committee, The Arizona Supreme Court Committee on the Impact of Wireless Mobile Technologies and Social Media. This committee is made up of judges, lawyers, academics, and press officers who develop rules for the use of laptops, smartphones, and social media in the courtroom.

Like it or not, the Internet and social media are now a part of our criminal justice system and they’re not going anywhere. This sets up a conflict between the First Amendment rights of the news media and the fair-trial rights of defendants. Social media, like Twitter and Facebook, allow anyone with an account to distribute their thoughts and opinions to the entire world, which increases the risk of witness tampering, jury tainting, and unethical behavior by attorneys and judges.

Some of the biggest concerns with using social media in the courtroom relate to juries. As a rule, court trials are self-contained and juries are expected to make decisions based only upon information a judge has allowed attorneys to present. Social media can expose juries to the possibility of information leaks. To address that issue, Arizona state courts looked at rewording jury admonitions.

For years, jurors were told not to watch television news or read newspaper articles which talk about the trial they are sitting on. Today, the digital equivalent of that is telling jurors that they can’t make posts to social media which might give an indication of which way they’re leaning on a case, or go online to do research on that case. Recently, researchers monitoring Twitter found that people who identified themselves as prospective or sitting jurors tweeted every three minutes.

The Arizona Supreme Court’s committee is looking into giving cards to jurors advising them what they are and aren’t allowed to do. They are also considering producing posters for jury rooms which have the Facebook “F” and Internet Explorer “E” in red circles with bars going across them. They’ve also suggested wording which would read: “Do not send or read messages about this case because your verdict must be based on evidence presented in court.”

While there haven’t been reported instances in Arizona of a jury case that was compromised by the use of social media in the courtroom, or of a lawyer being disciplined because of social media usage, there are several cases from other places. Here are just a few examples:

• In Britain, a  juror took to social media to ask if she should find a defendant guilty or not guilty.
• A mistrial was declared after five members of a Baltimore jury “friended” each other on Facebook during a political corruption trial and discussed the case online.
• A judge in New York state was disciplined for becoming “friends” with lawyers on social media.
• Last year, a federal judge in New Jersey had doubts about the testimony of a witness, so she went on Facebook to check out that witness.
• A Michigan juror posted an inappropriate post to her Facebook page, which read: “Gonna be fun to tell the defendant they’re GUILTY.”

The Chairman of the Arizona Supreme Court Committee on the Impact of Wireless Mobile Technologies and Social Media, Justice Robert Brutinel, says that as social media technology continues to evolve, courts will be forced to adapt. When people ask him whether social media belong in the courtroom, he says, “I keep asking, ‘Why not?’… We asked, ‘Could we forbid this?’ And the answer was, ‘We couldn’t.’”