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From tweet to defeat

From tweet to defeat

By Bill Doogue

Social Media Technology 

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Social media has assumed a central importance in criminal law, faster arguably than in any other specialty.

I firmly believe that if a lawyer does not have a strong grasp of social media, they are not serving their client adequately. In today’s climate, if a lawyer does not seek to discover a client’s computer data because they are unfamiliar with computers, it could be called negligent.

Personally, I see no difference in having the same approach with social media. It is not new-fangled, it is mainstream and it is immediate data that affects your client’s case. And it is powerful.

There is nothing especially complex about “social media”. Those two words succinctly define why you should not shy away from it – “social” and “media”.

Social media presents a plethora of opportunities and information that cannot be ignored.

Some of the most obvious social media platforms that you really should understand the basics of are Twitter, Facebook, Instagram, Four Square or other location-based platforms, and RSVP and other meeting sites. These are the main platforms and are just an example of the technology that can be used to establish geographical coordinates, time frames, chronology of events and frame of mind.

Social media is a great educator. Twitter is an effective way of keeping current with minute-by-minute updates around the world. You choose who you want to follow, streamlining your feed of information, and it literally gets fed to you. Its curt format allows you to sift through to what you want to read.

For lawyers, the information you can access is both case related and informational. The tweets from US jury experts are fascinating as they are allowed to question jurors after trials and so have a lot of insightful ideas about defending criminal prosecutions.

Case based information can include posts that tell a different version of events to what a witness has reported to police. The essence of the test of truth in the criminal process is whether a person tells a consistent story. The job of a criminal defence lawyer preparing a case is to line up the inconsistencies, and looking at social media from the very start is essential.

Social media also allows users to engage personally with other lawyers and share insights. I had a Twitter conversation with a criminal defence lawyer from Texas. He then forwarded me some interesting material on how American lawyers present the concept of “beyond reasonable doubt” to juries. I have tucked that away in the “maybe one day” file.

Social media gives us valuable learnings from those who have gone before. The UK is having its own legal aid crisis, and the criminal law fraternity are far from reticent in sharing their views on Twitter. Keeping abreast of this information shines a light along the path we are possibly heading down. And, as they say, forewarned is forearmed.

As with anything, however, there are cons to these pros.

It is no revelation that many people have come under fire for posts to their social media profiles. My conclusion is that people may assume they are in a bunker when posting their views online. Sitting alone behind a screen can give a sense of bravado that may not be there in a person-to-person situation. This is true in a universal sense as well as in the realm of law.

Normal filters and common sense should apply: If you wouldn’t write it in a letter, don’t tweet it; if you wouldn’t say it to someone’s face, don’t tweet it; if you wouldn’t utter it to a journalist for print, don’t tweet it; if you shouldn’t say something at all, don’t tweet it; if it’s late at night and your thoughts might be lost to a too-long day and recollections of that last slice of not-great pizza, then don’t tweet. You get the general idea. And I’m certain I don’t even need to touch on drink-tweeting.

That is all a part of being involved with social media, but what of the impact of social media specifically in relation to court cases? That is another area entirely.

In jury trials, there are separate areas for concern regarding social media.

The first relates to jurors posting information during the trial. There are still only a few documented cases of this in Australia, though they are hefty examples of the contradiction of a defendant’s right to a fair trial. Globally there are a few more examples. In one case, a juror in the UK posted details of the child abduction and sex assault case she was seated on and followed it up with: “I don’t know which way to go, so I’m holding a poll”.

This is a double-whammy of juror no-nos, in that the juror in question publicly furnished information about the trial as well as instigated an online conversation to seek out the opinions of other people. Needless to say, she was dismissed from the jury.

Another area of great concern is when jurors find information on the accused by searching on the internet. Or “trial by google”, as it has been coined. And in high-profile cases, there is an abundance of prejudicial material to be found on such forums as Facebook where ill-informed people collect likes, share and comments that can provoke emotional responses.

As the accessibility of social media has improved with the advent of smart phones, we carry the power of social media, quite literally, in our hands. Add to this society’s burgeoning compulsion to share minute-by-minute updates on every aspect of their lives and I am certain that we are simply swerving around the tip of a very large iceberg.

Aside from jurors and the entire public, there are more intimate ways social media can tamper with sacredly practising law as we know it – the protagonists themselves. Allow me to elaborate using some real-life examples.

Pre-charging impacts

One of our own clients became quite annoyed with a person, in what I thought was a fairly justified response to issues this particular person had experienced. A rant on Facebook ensued: “I’m going to kill ’im”. The person in question was alerted to the post and went to the police. Our client was charged with making threats to kill.

Another client posted on their Facebook page that they were planning to “take a hit out on someone”. My understanding is that people actually intending to “take a hit out on someone” do not broadcast it on Facebook first, but it did result in charges.

Pre-trial impacts

We have many underage sex cases where the main issue is belief that the complainant was of legal age. Social media is an important tool in assessing the truth that the complainant may have presented themselves as older. Often there are photos and comments posted that add weight to the client’s claim that they had a reasonable belief the complainant was older. In one case, Instagram helped us block a rape charge from proceeding beyond the interview. The posts and images were completely inconsistent with what had been alleged.

I ask every client on serious charges at the first interview about their or the complainant’s use of social media. They need advice at that stage about what is the proper way to conduct themselves on social media. It is also important to get a copy of items that witnesses have put up before they come to the realisation that they should pull them down. That is something you have to get on to straight away.

Sentencing impacts

In another case, our client was one of a group who had robbed and beaten some people. Our plea in mitigation was underpinned by psychological reports and what we saw as being clear evidence of remorse. Just prior to the plea, the prosecutor gave us a copy of what the offenders had posted on Facebook only days before their court appearance: “We done them over B***** style”.

This stream undermined our planned assertion of remorse and affected what we could hand up on behalf of our client. The reality was that social media revealed that the group had little to no remorse at all.

The appeal advantage

Our firm recently ran a trial where our client and a co-accused were charged with underage sex. They maintained the complainant had always claimed to be 16. This she denied, saying she never presented herself as any older than her actual age of 15. The jury convicted the two boys and they were sentenced to jail. After a year in jail waiting for the Court of Appeal to hear their case, we discovered that the complainant had published on MySpace that she was 17 years old. We were successful in appealing the conviction with this fresh evidence and the boys walked free from jail.

It was not something that we were ever alerted to before the trial and we had no way of knowing it was there at that time.

Conclusion

What you publish on social media is instantly in the public domain. Content, once published, is also not owned by you. Some users of social media still have little idea of the breadth of its personal impact and therefore exercise little caution in what they post, forgetting that their profiles are not actually private little bubbles for their friends’ eyes only.

In the domain of criminal law, one thing is undeniable – social media is deeply entrenched in the process of prosecution and defence. There is good and there is bad. There is disaster and there is triumph. Social media can now be a window into millions of people’s worlds, whereabouts, personal information and psyche. What further impact this will have as technology advances, only time will tell. For now, if you haven’t jumped on to this fast-moving train, you’re sure to be left behind.

Bill Doogue is an accredited criminal law specialist and partner of Doogue O’Brien George.


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