MySpace is a well-stocked arsenal for trial lawyers

MySpace is a well-stocked arsenal for trial lawyers
By Edward P. Schwartz
October 8, 2007

While your fourteen year old daughter might have known about MySpace and Facebook like forever, trial lawyers have only recently begun to realize the amount and variety of ammunition that may be waiting for them on these social networking sites.
Whether defending an assault case, trying to force a settlement in a med-mal case or trying to find the inside scoop on prospective jurors, social networking sites such as MySpace and Facebook have become a valuable resource that should be a standard part of any trial lawyer’s pre-trial research.
Consider the following examples:

• The Santa Barbara, Calif., district attorney secured a more severe penalty against a young woman who pleaded guilty to vehicular homicide, when he produced photographs from her MySpace profile of the woman binge drinking and partying with friends. Instead of probation, the woman was sentenced to two years in prison.

• Pima County, Ariz., prosecutor Jonathan Mosher forced a man to plead guilty to aggravated assault with a deadly weapon when he produced a picture from the defendant’s MySpace profile of him brandishing the same kind of gun used to hold up the victim.

• A Pensacola, Fla., defense attorney supported a client’s contentions that he had cut off contact with his former girlfriend, as ordered, by finding messages that the woman had posted to him on her MySpace page, contradicting her claims of continued harassment.

• Leo Thomas, attorney for Brandon Ward, a former Marine accused of stabbing to death Joseph Hall, bolstered his client’s self-defense claim by showing the jury Hall’s ultra-violent MySpace profile, “joehallwillkillyourfamily.” The prosecutor in the case, Bobby Elmore, then one-upped the defense by showing the jury a message to Hall from Ward’s girlfriend, inviting Hall to a party she was hosting with Ward, suggesting that Ward couldn’t have been that afraid of Hall.

• Defense attorney D. Jesse Smith secured an acquittal for a client accused of assault after showing the jury videos from the alleged victim’s MySpace page of him beating up various other people.

Blogs are similar to social networking sites, in that a blogger has free rein to express views, create links and post photos and videos on his site.
One Massachusetts pediatrician, blogging under the name “Flea,” used his blog to vent about his ongoing medical malpractice trial. He had several derogatory things to say about the plaintiffs, opposing counsel, the judge and even the jurors. When the plaintiffs’ attorney confronted him with his own blog on cross-examination, the doctor’s insurance company immediately settled the case.
The lesson from these examples is to investigate the web presence of everyone involved with your next trial. But this is easier said than done, since many Facebook and MySpace users use anonymous user IDs and many blog entries are made under pseudonyms.
As such, you will likely learn little by just searching these sites for the name of a witness or juror. You will need to get prospective jurors, witnesses, plaintiffs and defendants to provide you with the information themselves.
Given the potentially embarrassing nature of information posted on such sites, few jurors will volunteer such information during voir dire in open court. As I have discussed in earlier columns, people tend to be more forthcoming with sensitive information when asked in writing. As such, I recommend that you include a couple of questions about blogs and social networking sites on a supplemental juror questionnaire. It may then be possible to learn more about a juror’s web presence during individual voir dire, provided that it is conducted in private.
However, it is also important to recognize that people develop a web persona for a variety of reasons. There are a handful of common reasons you should be aware of, each requiring its own interpretation of the information you uncover.

• Confessional
For many people, these sites are a means of self-expression. They will openly talk about their recent break-up, overcoming addiction, finding religion or guilt about some wrongdoing. These types of profiles provide deep insight into the character of the person who has posted the material. Untainted by the confines of a jury selection, these testimonials are probably more reliable than the answers you can get during voir dire.

• Aspirational
Some people who are disappointed with their real lives adopt a more impressive personae online. Consider the shy, awkward clerk, living in his parents’ basement, who represents himself as a studly investment banker, driving a hot car.
Others use a site as a means of boasting and inflating whatever persona they have adopted in real life. According to Pima County, Ariz. prosecutor, Joseph Diebolt, “Gang guys love this stuff. They like to make stuff up about themselves – brag about their weapons.”
Also, be aware that the number of “friends” a person accumulates on MySpace is not necessarily an indication of their popularity. The vast majority of these “friendships” are not based on any real closeness or trust, so it is important to realize that a “popular” or “well-connected” person on MySpace could be more of a loner in real life.

• Closeted
This country is still more socially conservative than most developed countries and many people don’t feel comfortable admitting their unconventional behavior in public. Homosexuals, cross-dressers, swingers and practitioners of S & M have found a haven of anonymity on the Internet. To a lesser extent, this is true for anarchists, communists and Neo-Nazis.
Suppose you discover that one of your jurors is a closeted homosexual, with a profile on a gay dating site. How is this likely to affect his decision-making as a juror? Remember that a jury room is a fairly public forum. While the deliberations may never be revealed to the general public, it is difficult to imagine a closeted juror speaking out in favor of gay rights to a group of strangers from his own community.
In addition, people who are “living a lie” may experience self-loathing to a degree that they are unsympathetic to others facing similar issues. Such jurors are most likely to strive to push their public personae during jury deliberations. Do any of us really think that evangelical preacher Ted Haggard or Idaho Sen. Larry Craig would exhibit any sympathy for a gay man during jury deliberations? The primary use one could make of a juror’s closeted status is to get him struck from the jury for cause.

• Role playing
Believe it or not, many people pretend online to be someone completely different from who they are. Approximately 30 percent of female profiles on Internet dating sites are actually posted by men, while 20 percent of postings to single dating sites are from people who are actually married.
It is also common for people to post entries under the name of someone else in order to embarrass them. So, as you examine a MySpace or Facebook page, make sure to confirm that it was posted by the person you think. If a person is willing to blatantly lie online, it might say something about his willingness to do so in other circumstances, as well.

• Attention grabbers
Some people see social networking sites as a way to get noticed. The more outrageous a person’s online persona, the more attention he or she gets. This seems particularly relevant for the 25-and-under crowd. As such, kids probably post only the most ridiculous parts of their lives. If a college student posts a picture of himself writing his name in the snow after a frat party, does that mean that he’s a perpetual binge drinker with no respect for society? Not necessarily.
While profiles on social networking sites can raise red flags about a potential juror’s character, it is important to follow up with targeted voir dire to find out what the person is really like. While it is possible that kids today do more stupid things than kids of yesteryear, it is more likely that they just document them better.

Be Proactive
The value of social networking and blogging sites as sources of juror information is only now coming to the attention of jury consultants, as evidenced by a recent thread on the subject on the listserve of the American Society of Trial Consultants. So, take the initiative and ask your jury consultant about digging into the web-lives of your jury pool -- you never know when "killalldalawyers4eva" will be staring at you from the jury box.