George Orwell's state-run surveillance society had children spying on parents, neighbors scrutinizing neighbors and Big Brother watching over everyone. What Orwell did not foresee was a time when people would voluntarily publish chronicles of their lives for public consumption.
Imagine bookstores suddenly inundated with truckloads of privately published diaries, photo albums and home movies. An unlikely scenario until the mass marketing of computers, digital cameras and Internet access provided an inexpensive outlet.
Millions are participating in online social networks in an age of unprecedented self-surveillance (sousveillance). And these sites are pushing criminal investigation into uncharted waters.
Two of the most popular networking sites are MySpace and Facebook, each of which boasts over 100 million users. And according to a 2008 Pew Internet and American Life Project survey, the numbers of adult users with online profiles increased more than 400 percent over the last four years.[FOOTNOTE 1]
Evidence derived from social networking comes into play in several ways. Law enforcement and prosecutors use it to identify suspects and build cases. And defense attorneys have begun to mine this resource for information that can exculpate their clients, impeach a state's witness or provide a basis for a reduced sentence or post-conviction review.
A couple of months ago, Newsweek reported on an investigation concerning the murder of a British college student in Italy.[FOOTNOTE 2] The suspects in that case were identified through Skype, an Internet phone service; and additional leads revealed by photos and short stories appearing on a Facebook page, an unsettling YouTube video and queries found in the history of a Google search engine. All told, these social networking and Internet communication sites collectively created a "virtual crime scene," the output of which is finding its way into the courtroom.
In a Niagara County Court, a judge increased the bail of a defendant charged with felony assault and misdemeanor weapons possession based on pictures found on a MySpace page.[FOOTNOTE 3] The accused had been released on $5,000 bail, but during his arraignment the prosecutor introduced 10 pages of MySpace photos. They allegedly showed him wearing gang clothing, giving gang signs and standing with others in gang colors. Based on this and other information supporting a likelihood of conviction, the judge raised bail to $50,000.
And during a Michigan murder trial, the prosecutor introduced Molineux-type evidence of intent and planning from defendant's MySpace site. The evidence in People v. Liceaga, 2009 Mich. App. LEXIS 160 (Mich. Ct. App. Jan. 27, 2009), included photos of the accused with a gun, purportedly used to shoot the victim and "throwing" a gang sign. Admission of the images was upheld on appeal because they established familiarity with the weapon and a pattern of threats made to other victims.
Social networking evidence plays an increasingly important role at other stages of the criminal process.
In United States v. Ebersole, 263 Fed. Appx. 251, 253 n.4 (3d Cir. Pa. 2008), a sentence of supervised released for interstate stalking was revoked because it was claimed the defendant sent a threatening e-mail to the victim. "At the revocation hearing," the court said, "Ebersole testified that he used his MySpace web page as a 'vehicle to voice [his] frustration.' (App. 29.)" The court admitted the profile page evidence to put the message in context.
Recently, in People v. Fernino, 2008 NY Slip Op 28044, 3 (N.Y. City Crim. Ct. 2008), a Staten Island judge held that a friend request intended to reach the complainant's MySpace page violated the "no contact" provision of an order of protection. "The defendant should not be exculpated because she, instead of contacting her victim directly, used the MySpace Mail Center Friend Request Manager," the court said.
In both cases the indirect nature of the communication was an unavailing defense. However, communication is a two-way street, and as illustrated below, the actions of the recipient may determine the outcome of a case.
In People v. Rodriguez, 2008 NY Slip Op 28123, 5 (N.Y. City Crim. Ct. 2008), an 18-year-old defendant's expression of "unrequited teenage love" for a 14-year-old complainant via MySpace failed to reach the level of aggravated harassment.
A key factor in dismissing the charge was the complainant's willingness to access defendant's messages on her page. No attempts were made to block them nor did she ask him to desist. At some point, the prosecution claimed she disabled her account, but offered no evidence to determine when it occurred or whether it was done in response to defendant's epistles.
The virtue and vice of social networking, and the Internet in general, are that it empowers everyone to be an investigator. But incautious use of publicly accessible profiles can lead down the wrong path in some cases.
A North Carolina resident had been arrested and prosecuted for injuries to a victim in an Albany bar fight.[FOOTNOTE 4] Some time after the incident, the victim had gone to a MySpace page where he saw an image of a person he thought was the attacker. Meanwhile, the man in the photo, who lived more than 700 miles away, denied ever having been in Albany. One DNA sample later, the case against him was dismissed.
Internet searching has emerged as a necessity in legal investigation. And with the advent of Google cache and the Wayback Machine to resurrect defunct sites and links, the search parameters have broadened. And now social networking is redefining due diligence in online investigation.[FOOTNOTE 5]
Sites like Facebook and MySpace may hold the keys to an alibi,[FOOTNOTE 6] justification or mental health defense or mitigating evidence. In addition, they may provide material to impeach law enforcement and expert witnesses or assail the credibility of eyewitnesses.[FOOTNOTE 7] Mistaken identifications and false or misleading information might be uncovered as well.
A defendant's social networking page can also be turned to advantage because, like most personal sites, it represents part of a life story. There may be postings that show strong roots in the community supporting a bail application or positive reputation evidence from testimonials useful in developing a defense theory or mitigation at sentencing.[FOOTNOTE 8]
Depending on the material posted, it could prove to be a valuable snapshot of a client's experiences -- similar to a day in the life movies used in civil litigation.
These sites can open the door to opinion making, where the power of one person or a 1,000 to post their views about a pending case can impact due process.
In United States v. Boyd, 2007 U.S. Dist. LEXIS 88493 (E.D. Tenn. Nov. 30, 2007), the accused moved for a change of venue based on pretrial publicity. In addition to TV broadcasts and newspapers articles, attorneys involved with the defense testified that there were YouTube videos, opinions about the case posted on Internet news sites, and extensive Google search results concerning the victim. All of the electronic information was available to any potential juror in the venire district.
While the attorneys could not determine how many potential jurors might have viewed the YouTube videos, for example, they noted: "[A]nyone, located anywhere on Earth, with access to a computer and the internet, could create a video about Christian and Newsom [victims], or the prosecutions arising from their deaths, and put it on YouTube."
The trial judge denied the motion as premature, being unable to determine the existence of actual prejudice, and instead granted a defense motion for individual voir dire as needed.
The dangers of jury pool contamination intoned by the defense attorneys in Boyd were realized in a West Virginia case.
K.J., one of the alleged sex abuse victims in State v. Cecil, 221 W. Va. 495, 504 (W. Va. 2007), had a MySpace account. A private detective working for the defense testified that she posted a statement about being "famous someday," and "used the website to communicate with older boys contrary to her mother's testimony that K.J. was now withdrawn and did not like to be around older boys or men."
The curiosity of two jurors got the better of them, and during trial they tried to visit K.J.'s MySpace page. However, the profile had been restricted or removed before trial and inaccessible -- reducing its prejudicial impact. Still, one of the jurors did discuss the site with her daughter, who knew the other victim and her family. While the jurors' attempted investigation was not productive, their actions combined with other misconduct by a third juror denied Cecil a fair trial.
As this next case illustrates, Web sites have to be seen to be impactful.
In State v. Gaskins, 2007 Ohio 4103, P30-P35 (Ohio Ct. App., Medina County, Aug. 13, 2007), the defendant was charged with sex crimes against two underage victims. During trial, he attempted to introduce evidence that one of the complainants held herself out on her MySpace page as an 18 year old with experience in adult sexual relationships.
The court permitted photos of the victim from that site to be admitted based on testimony about her appearance at the time. However, since no proof had been offered that the defendant had ever seen the site, and it was created after the event, questioning about the MySpace page was not permitted.
Jury selection has to take into account the fact that many in the pool will be familiar with social networking and Internet searching or have their own sites.
In view of the potential for unwanted publicity or juror curiosity, voir dire and jury instructions should consider how these sites can infiltrate and influence the proceedings. The questions from the Pew survey might suggest a few starting points.[FOOTNOTE 9]
Since Web pages can change or disappear, archiving or making a demand for preservation may be necessary. Admission or exclusion of testimony about the contents may hinge on this early capture of Web content.
Distinct from content is the conduct of the person profiled, whether a party or witness. The act of removing a page, privatizing access or changing the nature of the material posted may be probative as a virtual recantation, recent fabrication, inconsistent statement or basis for impeachment.
Depending on the reason that a complainant shuts down her site or a witness restricts access to his MySpace page, the next step may involve a subpoena to the networking host, a discovery motion, a Rosario demand or preclusion motion, and ultimately, an adverse inference jury charge.[FOOTNOTE 10]
Foreclosure of such evidence might run afoul of the confrontation and compulsory process clauses.
Moreover, if photos from Facebook were used in an identification proceeding or statements on a blog found their way into a search warrant application, there might be a basis for suppression.
The integrity of self-published online information depends on its authenticity and reliability. Well-known phenomena plaguing Web sites apply with equal force to social networking, such as hacking, identity theft, malicious misinformation and misrepresentation.
The Pew survey reported that 4 percent of users deleted their profiles because their page had been hacked or password stolen.
Social networking sites are personal. They represent an extension of conversations that take place between friends or reveal the desire to create casual relationships. The informality and dubiety of their content can be questioned. Whether offered as evidence by the prosecution or considered for use by the defense, fact checking is essential.[FOOTNOTE 11]
Media rich social networking sites have pulled back the curtain on the activities of multitudes. And lawyers are representing an increasing number of clients with an online presence, and trying cases where complainants and witnesses post information that can lead to impeaching or exonerating evidence.
Criminal defense is now virtual defense. And unlike memories that fade with time or physical evidence that deteriorates, a Web site will continue communicating to a global audience for a long time.
What will it mean when we live in a society where everyone knows everything about everyone? And how will it affect the rights of defendants to confront their accusers and prepare their cases?[FOOTNOTE 12]
A world with "virtual crime scenes" demands a comparable set of safeguards to ensure access to and the integrity of the virtual evidence that is fast becoming a staple of criminal prosecutions.
Ken Strutin is director of legal information services at the New York State Defenders Association.
FN1 Pew Internet Project Data Memo: Adults and Social Networking Web Sites (Jan. 14, 2009). See "New Numbers on Social Network Usage," CNET News, Feb. 10, 2009, .
FN6 See, e.g., "Lack of Internet Access Muddies Case Against Sex Offender's MySpace Site," Law.com, Nov. 6, 2006.
FN7 See, e.g., "MySpaced-Out Cops: NYPD Eyes Web Pages of Recruits," New York Post, Jan. 21, 2009; "Litigation Clues Are Found on Facebook," National Law Journal, Oct. 15, 2007>
FN10 Cf. "MySpace, Facebook Pages Called Key to Dispute Over Insurance Coverage for Eating Disorders," National Law Journal, Feb. 1, 2008.
FN12 See generally Anita L. Allen, "Dredging Up the Past: Lifelogging, Memory, and Surveillance," 75 U. Chi. L. Rev. 47 (2008); "India's Novel Use of Brain Scans in Courts Is Debated," The New York Times, Sept. 14, 2008.