Last week, a North Carolina appellate court (State v. Packingham) struck down the state’s law banning sex offenders from using social media. To date, most states have found similar laws across the country unconstitutional. Courts have repeatedly determined that these social media bans violate the criminal defendant’s First Amendment rights.
WSOC Charlotte: Social–networking ban deemed unconstitutional by N.C. judges
New law review article by Jan Jacobowitz and Danielle Singer, The Social Media Frontier: Exploring a New Mandate for Competence in the Practice of Law.
Abstract: Attorney Mark O’Mara’s use of social media as part of the defense strategy in the representation of George Zimmerman, who was prosecuted for the death of Trayvon Martin, highlighted the use of social media in the practice of law, and because of the tremendous media coverage of the trial, facilitated a robust conversation on whether the legal profession’s use of social media is the “new normal.” In fact, lawyers’ increasing use of social media is evidenced by a growing body of case law, ethics opinions, and journal articles discussing the propriety of using social media in areas such as investigation, discovery, and jury selection. Nonetheless, social media is often discussed as a slippery slope where only the adventurous among the legal profession are traveling. However, technology and social media are evolving so quickly that lawyers who elect not to participate in social media may be in for a rude awakening. An awakening that makes clear that the requisite level of competence and expertise required to effectively represent clients and avoid disciplinary and malpractice exposure requires an understanding and use of social media and technology in the practice of law. This article will explore the legal profession’s historical relationship with communication technology, relevant legal ethics rules and opinions, court decisions and malpractice concerns, which all support the contention that the use of social media and technology in the practice of law not only has become a required component of effective lawyering, but also that the failure to employ social media may result in the ineffective representation of clients, disciplinary complaints, and/or malpractice claims.
Here is the motion filed by Jodi Arias’ defense counsel to access the Twitter accounts of any future jurors who might be empaneled in a death penalty sentencing trial.
As some may recall, Arias was previously convicted in May of killing her on and off again boyfriend, Travis Alexander. At the time of her conviction, the jurors could not decide whether or not Arias deserved the death penalty. Thus, although she was convicted, she has not been completely sentenced. Her case is in a state flux as prosecutors must decide if they want to seat a new jury in order to pursue the death penalty. If a new jury is not empanelled, Arias will be sentenced to life.
According to defense counsel, they need access to the Twitter accounts of any future jurors to ensure that any decision made by the jury is based on evidence presented at trial not information gleaned from Twitter. The defense attorneys also note that in Arias’ earlier trial some jurors failed to strictly abide by the courts admonitions against using social media. The government has not yet responded to the motion.
A Toledo, Ohio man was charged with Obstructing Official Business after he revealed the identity of an undercover officer on Facebook. According to an affidavit that accompanied the criminal complaint, the defendant’s “act hampers or impedes that officer in the performance of his duties…[his] act also creates a risk of physical harm to the officer.” Obstructing Official Business is a misdemeanor offense.
The criminal defendant allegedly took the photo when he saw the officer in the hallway of a public courthouse. This case illustrates how a relatively harmless act like taking a photo when combined with social media can lead to a criminal charge.
For more information about this case go here.
An 18 year old criminal defendant who was initially charged with vehicular manslaughter saw his charges upgraded to murder after police discovered tweets in which the defendant boasted about his excessive speeding. According to authorities, the criminal defendant’s driving record along with his tweets in which he talked about how fast he liked to drive played a role in upgrading the case.
TheOfficer.com: Calif. Man’s Charge Upped to Murder After Tweets
Here is an interesting story about a federal prosecutor under fire for using his personal Facebook account to make derogatory comments about President Obama and Trayvon Martin.
According to media reports the AUSA
post[ed]…. a graphic that said, “Obama: Why Stupid People Shouldn’t Vote,” according to the story. He also wrote that “low information voters carried the day for the Dalibama in the last election.”
With respect to Trayvon Martin the AUSA allegedly wrote
How are you fixed for Skittles and Arizona watermelon fruitcocktail (and maybe a bottle of Robitussin, too) in your neighborhood? I am fresh out of ‘purple drank.’ So, I may come by for a visit. In a rainstorm. In the middle of the night. In a hoodie. Don’t get upset or anything if you see me looking in your window… kay?
A Virginia attorney was suspended from the practice of law for 5 years for telling his client to ‘clean-up’ his Facebook page. The attorney’s suspension arose from his actions in Lester v. Allied Concrete Co.
In Lester, the plaintiff whose wife had been killed by a truck operated by Allied Concrete, sued Allied for negligence and wrongful death. Prior to trial, defendants sought production of plaintiff’s Facebook account. In making this request, defendants attached a photo of plaintiff holding a beer can while wearing a T-shirt bearing the inscription
“I heart hot moms”
Upon receiving defendant’s discovery request, plaintiff’s counsel (Matthew Murray) instructed his paralegal to tell Lester to “clean up” his Facebook account because “we don’t want any blow ups of this stuff at trial.” The paralegal reiterated this request to Lester in a follow-up email, instructing him to clean up his Facebook and Myspace.
Lester’s attorney then formulated a plan by which Lester would deactivate his Facebook account. This in turn allowed Lester to state on April 15, 2009, in response to an interrogatory from the defendant, “I do not have a Facebook page.” Defendants filed a Motion to Compel Discovery, and plaintiff’s counsel had his paralegal to direct Lester to reactivate his Facebook account. Upon reactivation, the Facebook account did not include sixteen photos that had been deleted by Lester.
On August 18, 2010, defendants filed a Motion for Sanctions for Spoliation of Evidence. After a hearing, the court found spoliation and ordered an adverse inference at trial and that Lester and his counsel would remain subject to sanctions.
After a three-day trial in December 2010, the jury awarded Lester over $8.5 million, which was later reduced by the judge to $4.5 million. On September 1, 2011, the court granted defendants Motion for Monetary Sanctions against Lester and his counsel. Lester was sanctioned $180,000 and his counsel was sanctioned $542,000.