Tuesday, November 3, 2009

Using Social Media for Evidence

Just another way that Facebook, MySpace, Twitter and the like can come back and bite you in the posterior comes from MLive.com's A growing trend: Social media as legal evidence 

The business world has also discovered social networking sites, which can be a powerful marketing tool. They can also become a receptacle for complaints about bad customer service or employee comments about the company -- two good reasons to make managing your online reputation a priority.

Business owners are struggling with how to come to terms with all this.

Estrada notes that when a business embraces social media as a marketing tool, some common issues crop up, including the loss of employee productivity and the important distinction of whether an employee is representing the company or themselves when they use social networking sites at work.

"That's where having a documented policy, a clear and concise policy that outlines acceptable use of social media tools, is really important," Estrada said.

Companies use social networking sites as part of the hiring process, including asking job candidates to log in to their Facebook account during an interview.

Estrada says employers are looking for information about a person's character, their social habits or anything that speaks to a person's integrity.

"Don't put anything on a social network page, blog, Web site or in an e-mail," he said, "that you don't want printed on the front page of the newspaper."
What applies to the business world applies to family law cases.

Bringing this back home with Supreme Court considers MySpace statement from The Indiana Lawyer:

In Ian J. Clark v. State of Indiana , No. 43S00-0810-CR-575, the high court found Ian Clark's statements made on a MySpace page were admissible as evidence.

In the opinion, Chief Justice Randall T. Shepard included the description that Clark made about himself on the Web site, which the prosecutor read for the court over the defense's objection:

"'Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I'm glad to say I have helped you people in my past who have done something and achieved on the other hand, I'm sad to see so many people who have nowhere. To those people I say, if I can do it and get away. B... sh.... And with all my obstacles, why the f... can't you.'"

Clark had also stated to a detective while waiting in an exam room with police, "I will f...ing kick your ass. I will send the Hell's Angels to kill you. F... it. It's only a C felony. I can beat this."

"Clark's MySpace declarations shared much with his boast to the police after he killed Samantha," Chief Justice Shepard wrote.

Clark argued that because prior criminal acts should not be admissible in court, the MySpace statement would fit into that category.

However, Chief Justice Shepard wrote, "Clark's posting contained only statements about himself and in reference to himself. (Tr. at 465-469.) Thus, the State is right to observe that this is solely evidence of his own statements, not of prior criminal acts. It was Clark's words and not his deeds that were at issue, so Rule 404(b) does not apply."

No comments: