The Trayvon Martin murder trial is pushing the limits of social media in the legal system, and how the courts address the case will an impact beyond the Miami courtroom.
The next time you’re up for jury duty or you counsel a friend going through a personal injury situation, lawyers may be scanning your Twitter or peeking at your Facebook posts. And if you’re on the receiving end of a DUI ticket or called as a witness at a trial, your Facebook can be subpoenaed as part of the growing number of ways social media is altering the legal process.
All players in the legal system — from the attorneys, jurors, witnesses and courtroom judges to the person with the DUI ticket, law enforcement and the insurance companies — are stepping up their social media strategies, which has broad implications for what we think of as “social sharing” in legal terms.
What’s Happening: Lawyers defending George Zimmerman in the death of Martin are embracing the Internet to build their case.
Zimmerman, a neighborhood watch volunteer in Sanford, Fla., is charged with second-degree murder in the shooting death of Martin last February. Defense attorney Mark O’Mara’s set up a website, Twitter page and Facebook account, which he told the New York Times would help combat the “avalanche of misinformation” circulating about his client.
In addition, he’s trying to use Martin’s Facebook page and Twitter feed to bolster the claim of self-defense. Since Martin is dead, O’Mara is facing a protracted battle to authenticate the material, and subpoenaed Twitter and Facebook for the information.
“I will tell you that today, if every defense attorney is not searching for information on something like this, he will be committing malpractice,” O’Mara said, outlining what’s emerging as a blueprint for digital tools in the courtroom.
What’s Really Happening: The defense team’s decision to use social media to help build its case mirrors how police and insurance companies, among others, check these sites in their own work. Facebook posts can come back to haunt you, since they offer ways to piece together a profile of you.
Police departments are creating social media units to comb through Facebook histories to gather information on people who aren’t even the focus of a case, pushing boundaries of privacy.
You don’t even need to be a suspect to be on their radar. If you interact with a Facebook friend who becomes a suspect in a crime, your name may show up in a subpoenaed history.
In addition, prosecutors and defense attorneys scour Facebook and Twitter to see potential jurors’ media habits, interests, hobbies and religious affiliation, fleshing out data that’s more useful than standard questionnaires.
Incredibly, in the last five years, four-in-five divorce cases used social media posts as evidence, according to the American Academy of Matrimonial Lawyers. Judges often order divorcing couples to share Facebook accounts and online passwords as they navigate family court.
Social media is not only useful in family and criminal litigation, but it can influence personal injury, workers’ compensation, product liability, commercial litigation and employment cases. In these instances, lawyers and investigators make it a habit to dig up photos of people claiming to have a back injury dancing atop bars or participating in physical activities their reported injuries would prohibit.
What’s Next: Lawyers and investigators who mine social data are learning as much as they can about how to best use these digital tools to help their clients and themselves.
The legal community is learning the vital part social media plays in the discovery part of a case. Informal discovery — the factual research obtained without document requests, interrogatories, subpoenas or depositions — is conducted at any time, by anyone.
Since social media use in claims and litigation is new, little guidance from authorities exists on the best way to handle, preserve and use that data. But, those practices are emerging.
For example, insurance companies are beginning to search social media as soon as an adjuster becomes aware of a claim. As they search, companies advise investigators to save any photos and dates, and take notes that show activities the plaintiff is doing.
For example, an investigator found a plaintiff’s Facebook profile and saw he “liked” a local bowling alley. It didn’t directly relate to their lower back claim. But, when the investigator went to the place, he learned the plaintiff took part in a bowling league and scored a perfect game during the time he was allegedly injured due to lower back pains.
That kind of research isn’t a “smoking gun” in a divorce case, DUI defense or worker’s comp case, but helps to paint a picture and characterize your behavior and activities. The online crumbs you leave behind are the new digital DNA, and they’re increasingly vulnerable to close inspection by people looking for insurance or legal evidence.
Still, companies caution attorneys and claims professionals from using “deceptive” means and advise them not to contact the opposing party through a friend request or private messaging. These professionals are usually not allowed to speak with them without an attorney present, and the theory applies to online communications as well.
It is difficult to discern where law enforcement draws the line, and since they have an official role in ensuring public safety, social media like Twitter often cooperates when convinced of legitimate threats.
For its part, Facebook has an instruction page for law enforcement to get records. The site gives priority to emergency requests, and its allegiance to police over user privacy when criminal investigations are underway can be unsettling to many.
The Takeaway: The bottom line is relatively straightforward: if your social media information can be accessed through public means without deceptively requesting it from you or through one of your friends, it is “fair use.” Law enforcement agencies, prosecutors, litigators and claims professionals across the country are searching social media like Facebook, Twitter, Tumblr and Instagram to gather information in the course of their jobs, and they have the right to do so.
Many times this will include downloading pictures of suspects and their friends drinking alcohol or engaging in some other potentially inappropriate behavior, which may used to cross-examine defendants, witnesses and select a jury.
There are some things you can do to limit the potential damaging information that can be gathered from your social media interactions, especially if you or someone you know is involved in a legal entanglement. You can restrict information on your social media profiles, including pictures and locations. In more serious cases, people are advised during their legal consultation to simply shut down their social media accounts.
If you restrict your settings, check your profiles often to make sure negative posts and images aren’t being shared by friends.
Don’t accept friend requests from those you don’t know, either. That prevents a third-party from friending you and gaining access to your account, even after you’ve restricted it.
Some attorneys advise clients to contact any potential defense witnesses and ask them to restrict their social media settings, delete unflattering pictures of you, refrain from tagging you in the future and to not accept unknown friend requests.
And finally, if involved in a case, don’t talk about it on social media. Those involved in a case are advised against discussing details of their claim on the Internet, text messaging or e-mails since these methods can be documented and used in court. ♦