evidence and social media rebecca durney assistant director/chief attorney siskiyou-modoc regional...
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Evidence and Social Media
Rebecca DurneyAssistant Director/Chief Attorney
Siskiyou-Modoc Regional LCSA
Gina JohnstonSupervising Attorney
San Joaquin County LCSA
Social Networking Sites
• 87% of adults use the internet
• 74% of internet users are on social media
• 71% of online adults use Facebook
• 52% of online adults use more than one site
• 70% of Facebook users login daily
• Of all adult Americans 58% are on Facebook
2014 Social Media Update – Pew Research Center
A Few Facts About Social Media
• Allows anonymous tracking of long-lost friends, family and CUSTOMERS!
• Non-intrusive and anonymous until you choose to make contact
• Privacy settings must be “public” viewing• If page security is set to “friends” information
access is limited if you aren’t a legitimate friend
• Ability to communicate and track communications
• Free and available 24/7• Search BOTH CP AND NP • Focus today – Facebook
Advantages to Using Social Media
Free Public Profile for LCSA
• FC 17212 guides confidentiality in all communication
• Never post on the person’s public page - EVER
• Pretexting to get information
• ABA Model Rule 4.1 and 8.4(c) – False statement of fact – DON’T
• Using a CSO or other employee to “friend request” with improper motive – DON’T
• ABA Model Rule 4.2 - Contact with represented parties – DON’T
Ethical Considerations
Investigate and Name Search
• When located, search “about” for info on work and other customer details
• “About” can give you information on education, former employment and skills you can use to show ability to earn
Tips to Locate Customers
Use “Friends” List (if public)
When located, Check “About”
*Confirm identity
*Check the “About” tab and compare to CSE Participant Data
Research their timeline. Scroll, read posts,
comments and timeframes
Now for the Fun Part…
Self-employed
or Unemploye
d NP?
You may find what
they REALLY do…..
BUT I’m NOT Working!!
Find current contact info….
• Gain insight into their lives, status, situation and whereabouts
• Vital information like marital status, phone number, new residence, rehab or jobs
• Compare what they post to what they tell you
• Use this as a pre-interview check point to develop questions and areas to explore
Useful Information from Comments
Check Online Photo Albums
Look for photos that include work uniforms or vehicles,
new purchases, toys, vacations, lifestyle, etc.
License plates, work tools, “pride” posts
Find Assets from Photos
• Right click on the photo, copy and paste into Word. Resize as needed. What might be useful later? Both NP and CP photos.
• Add additional info to your saved photo like picture date, who is in photo and date it was accessed. Save in Word as a “PDF.”
• Add the Facebook page “https://” address to your Word doc and later you can click and connect directly from the hyperlink in the CSE image. Or cut & paste.
• Practice Note: Save the pdf to your desktop to upload into CSE at the PAR & case level. Document search will bring it up by date, PAR or case level
Save Pictures and Info in CSE
Photographic Evidence
Document your research and any information discovered at the Participant Level
Document Your Research
02/04/2015 CASE ACTIVITY LOG MISCELLANEOUS LEGAL GENERAL johnston.gina
Researched NP Jeffery Adams' Facebook page. Copied and pasted photos and postings in PDF which has been uploaded to CSE. Also reviewed "The Red Barn of Tuttletown" FB page. Per prior notes NP claiming unable to work since 2010. Most recent photos posted to NP's account are September 2014 which show him playing guitar. Postings also indicate he invited people to come and watch him play guitar. Review posted on The Red Barn FB page states "Jeff and Amy run a cool place..." Also in file is a copy of the liquor license for the bar. Licensee is Elizabeth Amy Wolfe. Bar is closed until further notice as of 1/29/2015 FB posting. Copies placed in file for CSA for next hearing.
• 53% of young adults (ages 18-29) use Instagram
• Half of the users use the site daily
• 94% of Instagram users also use Facebook
• 21% all adults use Instagram
• The app is needed to access full site
2014 Social Media Update – Pew Research Center
• Instagram allows photo sharing with Facebook
• Instagram uses “@” to designate other users
• Many Instagram user names are not the same as their real name or Facebook name
• THIS IS FOR LOCATE RESEARCH ONLY- there is no privacy so DO NOT POST CHILD SUPPORT INFORMATION
Instagram Sharing
Proof of Employment
• Instagram mainly provides photographic evidence of assets, employment and spending habits
• Used by many business owners to promote their business
• Can be used to refute claims that a self-employed person is making “no money”
• Social Media provides a (fairly) simple and free way to investigate and research
• Allows you to record as much current info as possible while still available before they lock down privacy settings
• Remember “State-wideness”. It should be second nature and there is a direct benefit to all
• Case v. PAR level? Is this info useful to any other county? Then put it at the PAR level. Use the names, not just NP and CP- different roles in different counties.
Information Overload?
• Use the social media info in your interview to ask direct questions and compare details of what’s answered vs. what you saw posted
• Independently verify the truth of statements and circumstances from posts and pictures
• Your court may allow testimony on Facebook information if you can establish foundation through testimony and independent evidence. Your court will dictate your evidence standards and requirements
• We’ve successfully used Facebook facts and information in court. The court directed how the evidence was used and what they wanted to consider in a ruling
• Encourage the party to raise the Facebook evidence themselves; they can offer better personal testimony
Practice Tips
Admissibility• Relevance• Authentication• Foundation
Evidence Considerations
Must meet basic threshold of relevance and over the hearsay hurdle:• Declaration Against Interest? (EC 1230)• Party Admission? (EC 1220)• Declarations against interest or inconsistent
statements? (EC 1230, 1235)• Business Records exception? (EC 1271, 1272)
Admissibility – Relevance
California Evidence Code §1400:
• (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
Admissibility – Authentication of Writings
California Evidence Code §1401
• “(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.”
Admissibility - Authentication- Writings
• Is the exhibit a printout from the Obligor’s social media site?
• Is it Obligor’s post? Does anyone else have access to the page?
• Does (or did) the information in the exhibit appear on the Obligor’s post?
• Does the printout accurately reflect the information as it is or was on the site?
Admissibility - Authentication
Establish that the social media page belongs to the Obligor. Most courts use the “totality of circumstances” approach:• Has the obligor adopted the username shown on
the profile page?• Are there photos on the site that confirm
identity? • Is there personal information on the profile page
or posts such as a birthdate, children’s names or spouse’s name, etc.?
• Can the other parent establish ownership of the site by obligor thru testimony?
• Did Obligor admit the page is theirs?
Authentication
Your LCSA witness can testify that:
• He found the page and identified it belonging to Obligor.
• He printed out the social media post or picture offered into evidence.
• He recalls how the social media page looked then, and
• He recognizes the exhibit as the printout of the page he saw.
Laying the Foundation for Authentication
If the person who originally accessed or printed the document is not available you can have another LCSA witness testify that she:• reviewed CSE notes and documents kept in the
normal course of business at or near the time of entry of that note or document/ photo.
• visited and researched the social media site independently
• read the information reflected in the printout (or the site is now locked down so could not)
• (if public) recalls the content of the social media site, and
• can attest that the printout accurately reflects the posts that she saw on obligor's social media site.
Laying the Foundation
• Social Media is here to stay. It can be a powerful free tool if not abused.
• Your court will direct what, how and when you can introduce social media information as evidence in your litigation.
• The parents may bring this evidence themselves and encourage them to, as they may have personal testimony to support the facts to be considered.
Conclusion
• Always be mindful of the confidentiality mandated by Family Code 17212 in your all your communications
• Train your staff if they are not social media savvy. It’s our responsibility to give them the tools to do our jobs- collect support as effectively, efficiently and customer friendly as possible.
• Establish basic office protocol and practice for employees who will access Facebook so there is no public disclosure and sensitive information is not released.
Conclusion
Rebecca Durney Email: [email protected]
Phone: 530-841-2991
Gina Johnston Email: [email protected]
Phone 209-468-0682
