Evidence in an Age of Self-Surveillance

Excerpts from Law.com article, Evidence in an Age of Self-Surveillance (via Internet Haganah):

Two of the most popular networking sites are MySpace and Facebook, each of which boasts over 100 million users. And according to a 2008 Pew Internet and American Life Project survey, the numbers of adult users with online profiles increased more than 400 percent over the last four years.

A couple of months ago, Newsweek reported on an investigation concerning the murder of a British college student in Italy. The suspects in that case were identified through Skype, an Internet phone service; and additional leads revealed by photos and short stories appearing on a Facebook page, an unsettling YouTube video and queries found in the history of a Google search engine. All told, these social networking and Internet communication sites collectively created a "virtual crime scene," the output of which is finding its way into the courtroom.

In a Niagara County Court, a judge increased the bail of a defendant charged with felony assault and misdemeanor weapons possession based on pictures found on a MySpace page. The accused had been released on $5,000 bail, but during his arraignment the prosecutor introduced 10 pages of MySpace photos. They allegedly showed him wearing gang clothing, giving gang signs and standing with others in gang colors. Based on this and other information supporting a likelihood of conviction, the judge raised bail to $50,000.

During a Michigan murder trial, the prosecutor introduced Molineux-type evidence of intent and planning from defendant's MySpace site. The evidence in People v. Liceaga, 2009 Mich. App. LEXIS 160 (Mich. Ct. App. Jan. 27, 2009), included photos of the accused with a gun, purportedly used to shoot the victim and "throwing" a gang sign. Admission of the images was upheld on appeal because they established familiarity with the weapon and a pattern of threats made to other victims.

Social networking evidence plays an increasingly important role at other stages of the criminal process.

In United States v. Ebersole, 263 Fed. Appx. 251, 253 n.4 (3d Cir. Pa. 2008), a sentence of supervised released for interstate stalking was revoked because it was claimed the defendant sent a threatening e-mail to the victim. "At the revocation hearing," the court said, "Ebersole testified that he used his MySpace web page as a 'vehicle to voice [his] frustration.' (App. 29.)" The court admitted the profile page evidence to put the message in context.

Recently, in People v. Fernino, 2008 NY Slip Op 28044, 3 (N.Y. City Crim. Ct. 2008), a Staten Island judge held that a friend request intended to reach the complainant's MySpace page violated the "no contact" provision of an order of protection. "The defendant should not be exculpated because she, instead of contacting her victim directly, used the MySpace Mail Center Friend Request Manager," the court said.

What will it mean when we live in a society where everyone knows everything about everyone? And how will it affect the rights of defendants to confront their accusers and prepare their cases?

A world with "virtual crime scenes" demands a comparable set of safeguards to ensure access to and the integrity of the virtual evidence that is fast becoming a staple of criminal prosecutions.

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