Social Media in the Courts
Kevin Emas
Judge, Third District Court of Appeal
Miami, Florida
emask@flcourts.org
Overview
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Prevalence of social media in our lives
Social media as an investigative tool
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Law enforcement
Pretrial discovery in court cases
Background information on witnesses & jurors
Use of information from social media to
prove or defend a case in trial
Misuse of social media in court
Social Media in the Courts
November 6, 2012
Social Media is Everywhere
Social Media in the Courts
November 6, 2012
Trends in “Non-Social” Use of
Social Media
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College and Grad School Admissions
HR and Prospective Employers
Law Enforcement Investigation
Civil cases
Criminal cases
Divorce cases
Misuse by jurors
Social Media in the Courts
November 6, 2012
Social Media in the Courts
An Investigative Tool
Sun Sentinel Article: August 11, 2011
“Undercover Wildlife Officers Use
Facebook, Social Media to Catch
Poachers”
Social Media in the Courts
November 6, 2012
Social Media in the Courts
An Investigative Tool
“After spearing a snook in the Intracoastal Waterway in
June, Brian Spuler proudly posted photos of his
catch on Facebook. Days later, he was arrested and
fined $350.
Florida wildlife officials have gone undercover on
Facebook and other social media sites to catch
poachers like Spuler showing off pictures of their illegal
catch. And it often is the lawbreaker's online friends
who get a cash reward for tipping them off.”
Social Media in the Courts
November 6, 2012
Social Media in the Courts
An Investigative Tool
The Sydney Morning Herald Article: July 13, 2011
“A new US law-enforcement
tool: Facebook searches”
Social Media in the Courts
November 6, 2012
Social Media in the Courts
An Investigative Tool
US law-enforcement agencies are increasingly
obtaining warrants to search Facebook, often
gaining detailed access to users' accounts without their
knowledge.
A Reuters review of the Westlaw legal database shows
that from 2008-11, federal judges have authorized at
least two dozen warrants to search individuals'
Facebook accounts. Many of the warrants requested a
laundry list of personal data such as messages,
status updates, photographs, "Wall postings" and
"rejected Friend requests".
Social Media in the Courts
November 6, 2012
Social Media in the Courts
An Investigative Tool
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Police conducting search incident to a valid
arrest may search (without warrant) contents
of cell phone found on arrestee
Think of phone as “electronic backpack”
Search may include texts and photos
 Online social media search?
Fawdry v. State, 70 So. 3d 626 (Fla. 1st DCA 2011);
Smallwood v. State, 61 So. 3d 448 (Fla. 1st DCA 2011)
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Social Media in the Courts
November 6, 2012
Social Media in the Courts
Pretrial Discovery Tool
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Your posts on social media are generally not
privileged
There is no “reasonable expectation of privacy”
if you make this information accessible to
others online, even if on a restricted basis
Facebook Principles and Terms of Service
Even if you “take it down” from the site, once
it’s out there, it’s out there (somewhere)
forever
Social Media in the Courts
November 6, 2012
Social Media in the Courts
Pretrial Discovery Tool
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Example: Plaintiff injured in auto accident
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Resulting back injury and loss of
enjoyment of life or restricted mobility
Facebook photo
posted two weeks
after accident
Accompanied by tweet:
“Bowled my highest
game ever tonight!”
Social Media in the Courts
November 6, 2012
Social Media in the Courts
Pretrial Discovery Tool
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Where a party’s physical condition or mental
state is at issue:
“It is reasonable to expect severe emotional or
mental injury to manifest itself in some social
media content, and an examination of that content
might reveal whether onset occurred, when, and
the degree of distress.”
EEOC v. Simply Storage Management, 270 F.R.D.
430 (S.D. Ind. 2010)
Social Media in the Courts
November 6, 2012
Social Media in the Courts
Pretrial Discovery Tool
Miami Herald Article: October 19, 2012
“Judge: Zimmerman Defense Can See
Martin Social Media Records”
Social Media in the Courts
November 6, 2012
Social Media in the Courts
Pretrial Discovery Tool
“A judge ruled Friday that attorneys for a Florida
neighborhood watch volunteer can inspect the school
records and social media postings of the unarmed
teenager he is accused of murdering.
Judge Debra S. Nelson said that defendant George
Zimmerman's attorneys need to know whether Trayvon
Martin's school records and social media postings give
any evidence that he had violent tendencies. Nelson
ruled that the defense can subpoena the Twitter
and Facebook accounts of Martin. “
Social Media in the Courts
November 6, 2012
Social Media in the Courts
Proof in Court
Examples:
 Cyberstalking and cyberbullying
 Divorce/Child custody cases
 Proof of negligence (e.g., prove other
driver texting at time of accident)
 Punitive damages claim (texting while
driving)
 Disprove alibi defense in criminal case
Social Media in the Courts
November 6, 2012
Social Media in the Courts
Proof in Court
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Divorce Case: Appellate Court approves
father’s use of mother’s MySpace postings
to establish mother’s sado-masochism,
pagan tendencies, and illicit drug use to
establish father should be awarded
custody of their child.
Dexter v. Dexter, 2007 WL 1532084 (Ohio
App. 2007)
Social Media in the Courts
November 6, 2012
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Divorce Case: Ex-wife seeking alimony from
ex-husband because auto accident rendered
her disabled and unable to work at any job
Ex-husband able to use ex-wife’s Facebook
postings to show wife takes belly dancing
lessons several nights a week.
Wife would not post any photos of her belly
dancing, stating on her page: “Gotta be
careful what goes on line. The ex would love
to fry me with that.”
B.M. v. D.M., 927 N.Y.S. 2d 814 (N.Y. 2011)
Social Media in the Courts
November 6, 2012
Social Media in the Courts
Proof in Court
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Criminal Case:
Evidence that defendant sent Facebook
“friend request” to 16-year old daughter of
ex-girlfriend sufficient to establish that
defendant violated domestic violence
injunction prohibiting him from having
direct or indirect contact with ex-girlfriend.
Hall v. Ryan, 2012 WL 3822154 (Fla. 3d DCA,
Sept. 5, 2012)
Social Media in the Courts
November 6, 2012
Other Uses of Social Media
in Court
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Stating your case through social media
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Spontaneous or continuous “press conference”
Background check of witnesses
Background check of judge, opposing
counsel
Background check of jurors or prospective
jurors
Social Media in the Courts
November 6, 2012
Social Media in the Courts
Misuse and Abuse in Trial
A judge has no “friends”
 Domville v. State, 2012 WL 3826764 (Fla. 4th
DCA, Sept. 5, 2012)
 Judge should have disqualified himself on
defendant’s allegation that because prosecutor
was a Facebook “friend” of the judge,
defendant had a well-founded fair he would
not receive a fair trial.
Social Media in the Courts
November 6, 2012
Social Media in the Courts
Misuse and Abuse in Trial
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Jurors Posting and Tweeting During Trial
Nationwide research reveals at least 28
verdicts were overturned or new trials
granted (21 in last two years) for jurors
using social media, blogging, or internet
sites during jury service
Social Media in the Courts
November 6, 2012
Social Media in the Courts
Misuse and Abuse in Trial
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Judge in Michigan fined juror for posting
comment on her Facebook page– before
the defense had presented its case– that
she thought the defendant was guilty.
Arkansas Supreme Court in 2010
overturned murder conviction and death
sentence and ordered new trial because of
one juror’s repeated Tweets during trial
Social Media in the Courts
November 6, 2012
Social Media in the Courts
Misuse and Abuse in Trial
Closer to Home:
In April of 2012, a Miami man sought a
new trial in armed robbery case because
jury foreman sent Twitter and Facebook
messages to followers during trial.
Example of his tweets:
“Live tweeting jury duty. Until battery dies.
Or a judge holds me in contempt. Whatever
comes 1st. Joking, your honor!”
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Social Media in the Courts
November 6, 2012
Social Media in the Courts
Misuse and Abuse in Trial
Instruction to Jurors At Start of Trial
“I want to stress again that just as you must not talk
about this case face-to-face, you must not talk about
this case by using an electronic device. You must not
use phones, computers or other electronic devices to
communicate. Do not send or accept any messages
related to this case or your jury service. Do not
discuss this case or ask for advice by any means at
all, including posting information on an Internet
website, chat room or blog.”
Social Media in the Courts
November 6, 2012
Social Media in the Courts
The end…
Social Media in the Courts
November 6, 2012