Monday, September 5, 2011

Facebook Evidence


I am a member of the Facebook community and really enjoy it.  I have been able to get in touch with old classmates and share information with all of my friends.  I routinely post pictures of my family, hunting trips, and other fun things for others to see. 

However, there is an inherent danger in using Facebook when viewed in the light of potential litigation.  I have noticed that I am starting to see attorneys use information posted on Facebook in court on a regular basis.  What you say, post, or provide information on Facebook, this information can be used in a court proceeding under certain circumstances.  This is true for criminal as well as civil cases. 

Recently, defense attorneys representing an Alpharetta man charged with sexually assaulting a female as she slept in the adjoining seat on a Delta Airlines flight from Dallas to Atlanta last fall have sought Facebook information on the alleged victim.  In this case, a friend of the defendant’s son “friended” the alleged victim on Facebook.  He then passed the information he had gleaned to defense attorneys who began contacting the alleged victim’s network of friends and family, according to federal prosecutors in Atlanta.  That access to the alleged victim’s Facebook page also prompted defense attorneys to seek a court order forcing Facebook to surrender all of the alleged victim’s public and private Facebook posts, including comments on her wall, chats with friends, messages, photos, notes, and relationship status updates. 

Prosecutors are of course opposed to this request.  They told U.S. Magistrate Judge Alan J. Baverman in the recent hearing that the victim, who had not been named in court records or in open court, believes that attempts by the defendant or his friends and family to mine her Facebook page for information are akin to being violated for a second time. 

Judge Baverman will issue a decision on what, if any, information must be provided to the defense. 

Interestingly, this case pits a defendant’s 6th Amendment constitutional right to confront, and cross-examine, his or her accuser against federal and state victims’ rights laws that attempt to shield victims from being victimized again by the courts in an era where social media such as Facebook and Twitter have somewhat confused the lines between what is private and what is public information.  In Georgia, victims’ rights laws limit defense attorneys’ ability to delve into a victim’s life and place them on trial for their past sexual behavior or lifestyle. 

I believe that judges are going to be more inclined to allow information on Facebook to be used in court.  Federal and Georgia law tends to protect information that is truly private in nature and to withhold protection from public information.  I tend to agree with Manny Arora, my law partner’s law school roommate and the attorney on this criminal case, when he was quoted as saying “The bottom line is that Facebook is inherently public.  The whole point is to share your private life with others on the Worldwide Web.”  Arora went on to say in his motion that his client’s right to information that would allow his lawyers to confront and cross-examine his accuser has got to trump personal privacy claims.   

I am not asking anyone to close their Facebook or Twitter accounts.  I just want to point out that the information that you choose to put on these and other forms of social media are potentially considered to be public information and thus at risk of being used by a court of law. 

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