May 2012 | Earn one hour of MCLE Credit in Legal Ethics
From the Chat Room to the Courtroom: Social Media Postings as Evidence
Patrick
In the contemporary world, a significant amount of people enjoy the use of a growing number of online social networking sites. Whether it is Facebook, Twitter, or one of the many other online social communities, social networking is fast becoming a common method of keeping in touch with friends and family. Unfortunately, for those unfamiliar with the (what should be obvious) lack of privacy, it is a trap for the unwary. One of the perils of using social media is the failure to appreciate the range of potential consequences that may stem from the information one posts on social networking sites. These consequences range from simple embarrassment upon having been “tagged” in unflattering photographs, to being impeached with the discrepancy between the information posted on Facebook and what is represented in the courtroom – whether in the form of witness testimony or argument from one of the lawyers when addressing the judge. Accordingly, modern lawyers routinely capitalize on the ease of attaining information in cyberspace in order to impeach parties and witnesses. When useful information is found, however, lawyers seeking to benefit from the in-court use of such information found on social networking sites should be aware that admitting such information into evidence is not as simple as printing a screen shot of a witnesses’ Facebook home page and garnishing it with an evidence tag. There are legal and procedural hurdles to overcome in order to make the juicy revelations found online admissible in court.
Attorneys are also vulnerable to impeachment in the sense that in-court statements made that are inconsistent with information found on the lawyers’ social networking sites will be problematic to say the least. Worst case scenario, when a lawyer’s in-court representations conflict with the information attributed to them on their online social networking sites, they may risk being found in violation of the ethical duty of candor. Regarding the scope of a lawyer’s ethical duties, practitioners should remember that ethical rules for lawyers may be applied to cover statements made online as well as offline.
Social Media as an Impeachment Tool
In modern times, Google is viewed as a somewhat helpful starting point as opposed to the best source of information. Contemporary lawyers acknowledge that the most useful information can now be found on social networking sites. When attempting to view the Facebook pages of parties and witnesses, however, lawyers are bound by certain ethical restrictions regarding the means by which they attempt to access private information. [1] Lawyers scouring social media sites looking for evidence sometimes strike gold. The issue then becomes - how can the lawyer properly introduce the online information into evidence.
One case that illustrates some of the issues involved in this area is People v. Beckley (2010) 185 Cal.App.4th 509. Regarding the evidence found in Beckley, the court held that a photograph of the girlfriend of a convicted criminal defendant flashing a gang sign, which a police detective had downloaded from the girlfriend’s MySpace page, should have been excluded because the prosecution failed to properly authenticate it. The police detective could not testify that the photo truthfully depicted the girlfriend flashing the gang sign and, unlike in People v. Doggett (1948) 83 Cal.App.2d 405, no expert testified that the photo was not a composite or fake. The court observed that “Such expert testimony is even more critical today to prevent the admission of manipulated images. . . . [W]ith the advent of computer software programs such as Adobe Photoshop it does not always take skill, experience, or even cognizance to alter a digital photo.” (Beckley, 185 Cal.App.4th at 515, citation and internal quotation marks omitted.) The court nonetheless affirmed the conviction on grounds that the error was harmless since the defendant’s gang membership was not reasonably in dispute.
Lawyers attempting to admit evidence found on social networking sites should be familiar with the evidence code sections that may apply. California Evidence Code section 1400 states that “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it to be or (b) the establishment of such facts by any other means provided by law.” Section 1401 states that: “(a) Authentication of a writing is required before it may be received in evidence. (b) Authentication of a writing is required before secondary evidence of its content may be received in evidence.”
The use of social media for evidentiary purposes has generated an abundance of publications on the topic, many of which cite both law and evidence rules from across the nation in an attempt to provide guidance to contemporary lawyers. D. Schoen in “The Authentication of Social Media Postings,” Proof (ABA litigation section magazine) 19:3, p. 6 (May 17, 2011) states that: “Courts have differed in this relatively new field as to what foundation for authentication purposes should be required to prove that the social media posting is attributable to a certain person or entity. It is clear, however, that courts will take a totality-of-the-circumstances approach to determining whether this element of the authentication foundation has been met and will rely on a combination of circumstances . . . to determine whether a sufficient showing has been made to attribute the social media posting to the person or entity to which the proponent wishes it attributed. ”
Other states have weighed in on the topic of using evidence found on social media sites in the courtroom. In Griffin v. State of Maryland (2010) 415 Md. 607, the Maryland high court concluded that evidence of a criminal defendant’s girlfriend’s MySpace page posting “JUST REMEMBER SNITCHES GET STITCHES,” to corroborate evidence that she had threatened a witness, was properly authenticated and admitted into evidence by testimony of the police officer who had printed the posting: (1) about the content and context of the message; (2) that the page contained a photograph of the defendant with the girlfriend; (3) that the page contained the girlfriend’s birthdate; and (4) that the message referred to the defendant by his nickname, Boozy.
Recognizing the value of information found online, some lawyers have been tempted to advise their clients what to remove from their social networking pages. But before you even think about telling your client to delete those racy photographs and unfortunate commentary showcased on his or her Facebook wall, consider that California Rule of Professional Conduct 5-220, Suppression of Evidence, states that “A member shall not suppress any evidence that the member or the member’s client has s legal obligation to reveal or to produce.” Also consider that ABA Rule 3.4, Fairness To Opposing Party And Counsel, states in pertinent part that a lawyer shall not: “(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value . . . or counsel or assist another person to do any such act ”
Social Media Information and a Lawyer’s Duty of Candor
Unfortunately, it is not only parties and witnesses who are impeached with material found online. Lawyers as well as witnesses have been caught in lies and impeached through information gained about them through social networking sites. In Texas, a lawyer requested a continuance due to her father’s death, but the judge discovered the lawyer ’s Facebook status updates reflected a week of partying. [2] This example runs afoul of a lawyer’s duty of candor.
Lawyers are not permitted to lie or misrepresent matters to the court. California Rule of Professional Conduct 5-200, Trial Conduct, states in pertinent part that: “in presenting a matter to a tribunal, a member: (A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth; (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.” Note that the California Rule differentiates between using truthful means of representation and seeking to mislead the court. This is an important distinction to make, as trial lawyers know, it is possible to present technically correct bits of evidence or information, but in a manner that is misleading in context. An attorney may be subject to State Bar discipline for violating the California Rules of Professional Conduct, per Rule 1-100(A).
A lawyer’s duty of candor is also laid out in the California Business and Professions Code. California Business and Professions Code Section 6068(d) states that it is the duty of an attorney to “employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” And lest anyone take a violation of an attorney’s duties lightly, the California Business and Professions Code contains a section that spells out the potential punishment. California Business and Professions Code Section 6103 states that “a willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.” Note also that California Business and Professions Code section 6067 requires a lawyer “faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability. ”
California Business and Professions Code Section 6106 discusses actions unfit for an attorney, which may result in discipline. The section states that “the commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension. If the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding is not a condition precedent to disbarment or suspension from practice therefor. ”
In addition, while violations of the California Rules of Professional Conduct and California Business and Professions Code are punishable by State Bar discipline, California Business and Professions Code Section 6128 actually imposes misdemeanor criminal liability on a lawyer who engages in or consents to any deceit or collusion “with intent to deceive the court or any party.” (BP 6128(a)) Punishment for violating this section is up to a six-month jail sentence or fine of up to $2,500.00 or both.
While California is the only state that has not yet adopted a version of the ABA Model Rules, when California does not have an ethical rule governing a specific issue courts may look to the ABA for guidance, although they may not consider ABA Rules and Opinions as binding authority. While an ABA formal opinion “does not establish an obligatory standard of conduct imposed on California lawyers,” the ABA Model Rules may be considered as a “collateral source” where there is no direct ethical authority in California. [3] The ABA Rule covering an attorney’s duty of candor is Rule 3.3. It is important to note that the provisions of Rule 3.3 apply in a broader sense than simply in the courtroom. ABA Rule 3.3 Comment [1] states that the duty of candor applies not only in front of a “tribunal,” but also while representing a client in “an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority, such as deposition. ”
The bottom line is that attorneys who use social media are vulnerable to being caught in a misrepresentation whenever anything they represent in court is inconsistent with what they have represented online.
Conclusion
The contemporary world of social media requires lawyers to balance their desire to enjoy the benefits of social media with a working knowledge of the issues and potential pitfalls of using online social networking websites. A working knowledge of the rules and principles implicated by the use of social media will permit attorneys who choose to use it to evaluate their options and actions in light of applicable case law and rules of professional conduct, in order to use modern technology in a fashion that is effective, as well as ethical.
*This article does not constitute legal advice. Please shepardize all case law before using.
ABOUT THE AUTHOR:
Wendy L. Patrick is Chair of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC). She is a San Diego County Deputy District Attorney in the Sex Crimes and Stalking Division named by her peers as one of the Top Ten criminal attorneys in San Diego by the San Diego Daily Transcript. Ms. Patrick has had her own ethics column in the San Diego Daily Transcript for over a decade and writes and lectures on ethics nationally and internationally.
Ms. Patrick can be reached at wendy.patrick@sdcda.org or at (619) 531-3260
[1] See e.g., San Diego County Bar Association Ethics Opinion 2011-2.
[2] Molly McDonough, “Facebooking Judge Catches Lawyer in Lie, Sees Ethical ”(July 31, 2009); http://www.abajournal.com/news/article.
[3] State Compensation Insurance Fund v. WPS Inc. (State Fund) (1999) 70 Cal.App.4th 644, 656.