ABA Rules Lawyers can search juror Facebook posts

jury-consulting-social-media-facebook-twitter-blogThe American Bar Association is not a governmental licensing agency with jurisdiction over lawyers, that function is left to the individual states bar associations. But the ABA is a very influential organization that often drafts rules and opinions that wind up getting adopted and followed by many state organizations. So when they ruled that lawyers can ethically search the Facebook sites of potential jurors for information about the leanings of these potential jurors, that got some attention.

The ABA’s opinion is not binding on any state bar association (and it in fact is in conflict with at least one, the New York Bar Association), but it is likely to be cited by many states as a bellwether of inevitable change that should be adopted around the country. After all, if the goal is to get the truth from jurors about who they really are (as opposed to what they say in court in order to convince lawyers that they are “fair and impartial”), what could be more useful than hearing what these people have posted to the world about themselves?

This does not open the way for lawyers to surreptitiously “Friend” jurors or to engage in messaging with them, those practices are still prohibited. But passively reading what these potential jurors have said about themselves, their political opinions, and so on, is bound to be of great interest to every lawyer picking a jury. Expect to see whole new business start up with the goal of providing a Social Media profile of potential jurors.

Read more about the ABA opinion here.

– RP

Department of Justice changes policy on recording – finally

interrogationFor as long as I can remember, it has been the policy of the federal government to prohibit its agents from electronically recording interviews with criminal suspects in custody. Why on earth would they want to avoid having these interviews recorded? It’s simple, to avoid the truth. There is no other credible answer and no good argument against creating an accurate record of what goes on during these interrogations. At trial, federal agents have been coming into court and testifying under oath that defendants made incriminating statements which these suspects would often deny, resulting in a “he-said, she-said” swearing contest between the cops and the defendant. Guess who usually wins that one?

When asked to record these interviews, agents have vehemently resisted, claiming various reasons such as cost, privacy rights, and other flimsy excuses that really boil down to “We don’t want the truth revealed”. There is no other good reason. And ultimately, the United States Department of Justice has come to recognize that there in fact is no other reason other than “it benefits the defendant at trial”. Well, think about that. Why would it “benefit” the defendant at trial to have an accurate recording of what was actually said if the agents are telling the truth about what was said in the first place?

State courts have been far ahead in this trend and I often get audio or video recordings of my client interviews as part of discovery. What we’ve all learned from this practice is that it actually reduces unnecessary litigation over challenges to the integrity of the process, and gives everyone a more fair playing field. And with the cost of digital audio recorders being dirt cheap these days, there really isn’t any good excuse any longer to avoid taking this extra measure to assure accuracy.

According to unidentified sources talking to the press, the DOJ is currently circulating a memo (the “Cole Memo”) which instructs federal agents with the FBI, DEA and ATF to begin recording all custodial interviews with suspects in all but a few exceptional cases (of course, “National Security” is one of the enumerated exceptions). Field agents are largely opposed to this practice and it’s not surprising why. What is surprising is that the Department actually acted to implement a systemic change that gives the entire criminal investigative process a little more integrity. Good for them!

Read more about this story here.

– RP

Anything you Tweet may be used against you


Social media is making life a lot easier for cops and prosecutors to prove intent. An 18 year old California man was originally charged with vehicular manslaughter after “accidentally” killing a 58 year old cyclist in Dublin, California. When an ordinary vehicular accident results in a death, prosecutors can bring charges of manslaughter, a lesser form of homicide that is generally based on negligent or reckless behavior, without an intent to kill, or “malice”. A specific intent to kill, or “malice aforethought” is a generally required element of murder. When, however, there is evidence of the kind of reckless behavior that anyone should realize is likely to result in death, malice can be implied and murder charged.

Imagine, for example, a man points a gun into a movie theater and fires indiscriminately, killing someone. He later claims “Hey, I didn’t intend to kill her, I didn’t even know she was there”. That kind of behavior is obviously so full of general ill will that the element of malice needed for a murder charge can be presumed just by virtue of the behavior.

In this case, prosecutors had the idea to check the young man’s twitter account and found several tweets before the incident bragging about how fast he had been speeding through the area and making statements like “Live Fast, Die Young”. This was enough evidence of intent to cause prosecutors to upgrade his charges to murder.

Remember, anything you post anywhere on the Internet is permanent, forever, and likely to be retrievable by someone somewhere for whatever purpose suit them. If you’re not comfortable having it broadcast to the world, for crying out loud, don’t post it or tweet it.

– RP