“Don’t talk about your case”. Lawyers, particularly criminal defense lawyers, have been giving this advice to their clients since the dawn of time. Why? Well, lots of reasons. As technology has evolved, so too has this age old advice which now generally includes telling clients to pull down,or make private, all manner of social media including Facebook , Twitter, Pinterest, Instagram, etc….
Take for example the case of Kathryn Knott. Knott is the daughter of a Pennsylvania police chief who faced assault charges back in 2014 based on claims she was involved in the assault of a gay couple in Philadelphia. People started searching her old tweets and found comments best described as homophobic and racist. The comments went viral. Knott and her co-defendants were found guilty. In February 2016 she was sentenced to five months in prison.
The gay couple who were attacked by Knott are suing both her and her co-defendants for damages. Those homophobic tweets? They certainly did not burnish Knott’s image or lend support to her assertion during a criminal trial that she does not have issues with people who are gay. And, they almost certainly will be used in the civil case against her.
That’s right. The things you post on social media are admissible in a court of law and in the court of public opinion.
Court of Law
Law enforcement has become increasingly sophisticated in their use of social media to prosecute cases. They look at social media outlets to figure out where a person was and who they were talking to during a period in question. Cell phones ping cell towers as we drive around. Law enforcement can obtain these records and figure out where you and your cell phone were at a specific time.
People post a ton of information on social media. Complete strangers can learn a person’s entire history in a few mouse clicks. So can law enforcement. So can defense counsel.
How do defense lawyers use social media?
- The victim of an assault who claims they’re not violent and we find a picture of them in the boxing ring.
- One witness in a case claims they don’t know any of the other witnesses and a few clicks later Facebook reveals they’re friends.
- A complaining witness says they’re emotionally devastated because of a crime and yet there are pictures of that same complaining witness having a great time, laughing and chatting on an evening out on the town.
Court of Public Opinion
Fair or not fair, like I wrote about in my last blog post about Toby Willis, many cases are tried in the court of public opinion. ‘We the People’ are also ‘We the Jury’. Media coverage affects the opinions of perspective jurors.
Recent high profile defendants have gone digital in an attempt to re-vamp or defend their image. Think about Martin Shkreli. Shkreli founded a hedge fund and is the former CEO of Turing Pharmaceuticals – the company made famous for upping raising the price of a common drug used to fight HIV from $13.50 a tablet to $750 for the same pill. The move earned Shkreli the nickname ‘the most hated man in America.’
In December 2016, Shkreli was indicted in New York for securities fraud violations on accusations he was running Ponzi Scheme. Two months later he was subpoenaed to appear before Congress to answer questions about the price hike of the HIV drug. Shkreli invoked his Fifth Amendment right not to testify in response to questioning. Then, he turned around and tweeted that the members of Congress who questioned him were “imbeciles” and that he would answer questions from the public, including the same ones he’d refused to answer before Congress. He differentiated between the two stating the Congressional questions were motivated by the member’s self- interest.
Hard to accept that these imbeciles represent the people in our government.
— Martin Shkreli (@MartinShkreli) February 4, 2016
In what appears to be an ill-fated attempt to repair his public image, he recently agreed to be interviewed by comedian Mary Houlihan. The interview was posted by Seriously.tv. This is not Ryan Lochte tearing up on national television while apologizing and then going on Dancing With the Stars. There is nothing in this interview that helps Shkreli or his image. Nothing. (NOTE: This content is borderline NSFW (Not Safe for Work))
Life Under the Microscope
High profile defendants are judged differently. Everything they say or do is on display for the rest of us to comment on, poke fun at, and yes, judge. Every tweet and Facebook post from years earlier can and will be examined to see if there is some insight to be had into their current indiscretion, if there was some inkling about their soon-to-be fall from grace.
I’m not suggesting you should feel sorry for them. Most public figures are public figures by choice. What I am saying is that tempting though it may be to judge the likes of Knott and Shkreli based on their public persona, we shouldn’t.
Courtrooms have strict rules about the kind of evidence that is and is not admissible and those rules exist for good reason. Evidence about a person’s character is generally inadmissible. Why? Because a person’s guilt or innocence should be decided based on the facts of the case and not a Facebook post they made five years earlier while on vacation or the obnoxious tweet they sent out after a night of drinking, when they thought they were witty and only a few close friends would read it.
Evidence is admissible in court because it has passed scrutiny and a judge believes that evidence is reliable. Evidence that is based on conjecture or speculation is rarely admissible in a courtroom. Why? Because jurors are making important decisions about people’s lives and those decisions shouldn’t be made on speculative evidence.
When the United States was formed and the constitution written our forefathers sought to escape a judicial system that was grossly unfair, one where the accused had few rights and reputation was everything. Flawed though our system is, its goals are noble. The presumption that a person is innocent until proven guilty is the cornerstone of American jurisprudence. Mary Houlihan’s interview of Martin Shkreli is funny and Shkreli looks like a cad but we shouldn’t use that to form an opinion about whether or not there’s proof beyond a reasonable doubt that he ran a Ponzi scheme.
The only thing that matters in a court of law are the facts. Facts that are deemed reliable. Facts that are subjected to the rigors of cross-examination. Facts that were obtained in a manner consistent with the Fourth Amendment and the values on which this country are based. What we hear on social media often isn’t fact and we shouldn’t reach our own personal verdict based on opinions and interviews no matter how tempting or how unlikable the defendant.