2013 Updates

1) Latest Statistics and Use of Social Media

2) Zimmerman case

3) Attorney Duties and Ethics

4) Recent Court Decisions

Statistics and Uses 2013 User Stats

Facebook 1.26 billion LinkedIn 238 million MySpace 36 million MyLife 63 million Twitter 500 million YouTube 1 billion

91% of online adults use social media

Statistics and Uses cont’d Potential evidence

Profiles, List of friends Group memberships Messages, Chats Tweets Photos, videos Tags, GPS locations Check-ins Login timetables

Statistics and Uses cont’d

Recent survey byLexisNexis:

Most useFacebook and YouTubein their investigations.

Statistics and Uses cont’d Use by Government

Tracking probationers and parolees Linking defendants in conspiracy cases “Friending” suspects Access through cooperating witnesses Warrants for user account information

Twitter government requests up 80% from 2011 to 2012

Google government request up 40% from 2009-2011

Statistics and Uses cont’d Facebook

Requests for records Fax 650-644-3229 Email: subpoena@facebook.com Mail: Facebook, Inc.

Attn: Security Dept/Custodial of Records

1601 California AvenuePalo Alto, CA 94304

Statistics and Uses cont’d Facebook data available

Email address Registered mobile number Profile contact info Shares, notes, wall postings Friend and Group listings Photos Private messages IP logs

Statistics and Uses cont’d Use by universities, colleges, and schools:

Universities and colleges use to: Investigate underage drinking and violations of

dorm rules Investigate honor code violations Identify potential threats against the school or other

students Schools are using social media to combat bullying

and cyberbullying Universities and schools are reporting to law

enforcement agencies and aiding in their investigations

Statistics and Uses cont’d 2 Teens arrested in Florida for bullying that

lead to girl’s suicide. Many messages of hate on many forums

“I hate u” “you seriously deserve to die”

Father of teen arrested claims her Facebook account was hacked – that she could not have posted the message: “Yes IK I bullied REBECCA nd she killed her self

but IDGAF.”

Statistics and Uses cont’d Parents of arrested teen state that they

monitor her Facebook account. Parents did not know about Kik and Ask.fm

accounts. Kik: instant messaging application on

mobile devices. 50 million users Ask.fm: social networking site, users can

remain anonymous. 65 million users Associated with many cyberbullying cases

Zimmerman case Prosecution was accused of failing to

personalize or humanize the victim, Travon Martin

No teacher, minister, coach, best friend testified

Parents testified only regarding his voice on the 911 call

No witness described the victim as a person

Zimmerman case cont’d

Social media evidence against the victim included: Text messages discussing fights, his

interest in buying a gun, and his recent suspension from school.

Discussions of marijuana use and purchase

Video the victim took of “two buddies beating up a homeless guy.”

Zimmerman case cont’d

Defense claims of relevancy The victim’s familiarity with guns,

seeking to buy guns, ongoing fighting, use of drugs, looking to buy drugs was relevant to the defense that Zimmerman had no choice but to act in self defense.

The victim’s use of, or withdrawal from, drugs may have sparked the victim's aggression

Zimmerman case cont’d Defense motion to allow victim’s text

messages, photos, and school records was denied because it was unfairly prejudicial and not relevant. The judge also had authentication issues because there was nothing that showed that the victim himself sent the messages. But…

It could all be allowed in if the prosecution opened the door on the victim’s character by presenting evidence beyond the 5-minute encounter between the victim and the defendant.

Attorney Duties and Ethics

Ethics

Competency

Duties and Ethics

Follow Rules of Professional Conduct MRPC 1.1 Competence (adequate

preparation) Comments: “Competent handling of a

particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation.”

Duties and Ethics cont’d

MRPC 4.1 Truthfulness in Statements to Others (cannot “Friend” request using a false name)

MRPC 4.2 Communication With a Person Represented by Counsel (must have consent of counsel)

MRPC 4.3 Dealing with an Unrepresented Person (must state your role in the matter)

Duties and Ethics cont’d Attorney ethical issues in social media

NY, NJ, KY, NH, PA All have bar opinions (state or local) on how

and when attorneys can access/use social media in their investigations

Most limit social media inquiries made of jurors Cannot contact or “Friend.” Can search and read public sites

No Michigan Bar opinions – at this time. SBA Ethics Hotline 877-558-4760

Duties and Ethics cont’d

Duty to Google??? In an Indiana civil case, the case was dismissed

because of a lack of due diligence in the plaintiff’s attempt to locate the tortfeasor

The court noted in a footnote: “We do note that there is no evidence in this

case of a public records or internet search for Groce or the use of a skip-trace service to find him. In fact, we discovered, upon entering “Joe Groce Indiana” into the GoogleTM search engine, an address for Groce that differed from either address used in this case, as well as an apparent obituary for Groce's mother that listed numerous surviving relatives who might have known his whereabouts.”

Current cases People v. Dabish (Mich. App.) (unpub) (2013)

Def claimed I.A.C. for failure to investigate email, telephone, & social media accounts.

Atty tried to get emails admitted to show that the victim was depressed, unstable, and abused drugs.

Trial court agreed they were relevant, but excluded them because they were not properly authenticated.

No showing that they were actually written and sent by the victim.

Id of the email address alone was insufficient. Mere use of the email address did not show that the

victim actually sent the emails. Not I.A.C., emails showed some investigation and def

failed to show how counsel could have authenticated them.

Current cases cont’d Campbell v. Texas (Tex. App.) (2012)

Facebook messages from def to victim authenticated in dv case Internal characteristics used to authenticate

Def’s unique speech pattern (native of Jamaica) Reference the incident and charges, only known

by a few at the time Circumstantial evidence also used

Def’s account, testified that only he and the victim had the password

Victim testified she could not access the account at the time

Current cases cont’d Simmons v. Kentucky (KSC – unpub) (2013)

Def objected to admission of a diary containing copies of text messages between the def and CSC victim

Victim deleted the texts but wrote the contents in her diary before she deleted them

Not a violation of KRE 901 (authentication) – because not admitted into evidence

Not a violation of best evidence rule – not admitted Testimony allowed under KRE 803(5) (recorded

recollection) because victim could not remember exactly what the texts said

Current cases cont’d Hoffman v. Delaware (DSC) (2012)

Def pled to manslaughter for killing a man in a traffic accident while texting and DUI

Not an abuse of discretion to find the def’s failure to remove pics of her “glamorizing alcohol” from her MySpace account after the accident was an aggravating factor in sentencing, especially since the victim’s family viewed the photos.

Current cases cont’d State v. Church (Tenn. Crim. App.) (2013)

Use of def’s nickname on MySpace page upheld Investigator subpoenaed records Subscriber report had def’s name and user number Message on page sent from nickname Photo of def on page

Not inadmissible hearsay Party admission, his own statement The court did caution the prosecution to be very

careful and omit any references from the MySpace page that referred to the def’s prior jail time

Current cases cont’d Prater v. Arkansas (A.S.C. – 2012)

Not I.A.C. when def counsel failed to use pics of victim taken at a party days after rape Def believed that the pics showed that the she

did not look like a rape victim Def admitted to sex, but claimed it was

consensual Counsel stated he did not believe that they were

relevant and could inflame the jury Court: victim did not testify that she could not

leave her home or be social after the rape. Not relevant and counsel’s decision to not use

them was trial strategy

Darwin Award 21-year-old student assaults 56-year-old

woman wearing same sweatshirt he wore in multiple Facebook pics.

Darwin Award cont’d

Police matched surveillance footage and the Facebook post.

The sweatshirt had custom lettering on the back: “Stugotz 27” An Italian slang meaning “balls.” The same word appears next to his name on his Facebook page.

Arrested for assault and robbery.

Let’s Go TIGERS!!!!!