evidence from social media in criminal cases part 4

By February 27, 2017Criminal

Finally we will touch on admissibility and I have got 3 similar cases from 3 different jurisdictions, one of which is Texas, you’ll be happy to know may be discouraged to know that in Texas, really we do not have any special work rules for the admissibility of social media evidence. Some states have gone further to actually require a proof that the person created the post because it is phenomenally easy to fabricate a post.
It is not hard to hack someone’s account and post is as if you are them. It is not also hard to trade a fake account and post if you are them, that’s why famous people said the real whoever because there are some other people out there pretending to be them.

Texas says that goes to wait not admissibility, let the jury sort it out. And so that has been the approach so far. So it’s something to be aware of that the end when it is actual time to introduce the thing into the evidence. Texas doesn’t do anything unusual but it is point of attack, for you if there is any reason at all to doubt that your client made the post that the other guy is offering.
So with that stuff outta the way, let’s see a few of the basics.

Man tweets for weed, “job goes up in smoke. Awesome can we come too? Any dealers in Vann want to make a 20 sec chop? Come to Kia lang staff Mr. Lu need a spliff.” For some reason people are just stupid, like I don’t understand, why you would have ever put this on internet? And think it won’t come back around but people do it. So if you think you can’t find it, by the way you can.

Disciplinary rules so that stuff works around, things I need to remember I go looking for it and representing a client a lawyer shall not communicate or cause encourage another to communicate about the subject the representation with the person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject unless I have consent.

What does this mean? You have sighted coming these in the footnotes, believe it or not, lawyers some not in Austin have had to be told you know what you can’t do, you cannot have your legal assistant take his or her Facebook account and try to friend the plaintiff to get access to their timeline and see everything if they have their privacy setting sets properly I may not be able to see Facebook because it may not be externally exposed, I going to have to use formal discovery to get it. Unless of course I can convince you to friend me and a shocking number of people, do you know what it takes to become their friend?

“Ask” well they don’t look at like who you are or why are you asking or who you are associated with and at least some people have taken that to the next logical step, unethical step of actually initiating a communication with a represented party by having someone they don’t know become their friend which then gives them access to all of their internet postings, that is not shockingly a blatant violation of the rules. Do not ever do it under any circumstance and in the same fashion that I cannot myself do it, I could not go befriend the plaintiff and candidly at least if I did it, they would know who I was arguably.

I also cannot have someone else do it. I cannot use a mole, I cannot direct someone to go in, tunnel in get this information and feed it back to me, that would be initiating a communication with a party that are known to be represented, that would violate rule 402, I cannot do it.
Let me twist the hypothetical slightly, what if my legal assistance comes in and says look this is kind of awkward, I know this person. What? I know this person like we are friends on Facebook. Now question… was already friends, not going to initiate anything, and I know that someone in my office has direct line of sight to something that plaintiff is publishing to a select group of people on the internet. Plaintiff probably doesn’t realize who my legal assistant is, if I don’t say anything and my legal assistant were just come in and bring me things that I didn’t exactly asked for, is that okay? What do you think by the way?

Francisco Hernandez

Author Francisco Hernandez

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