In a case of first impression, a Florida appellate court held that a Florida law prohibiting certain written threats can reach statements posted on Facebook, the Daily Business Review reports.

Timothy Ryan O’Leary was charged with two counts of violating Florida Statute 836.10 for what he wrote on his personal page. Under the statute, a person who “writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication… containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent,” commits a second-degree felony. The same holds true if the threatening communication is sent to a family member of the person being threatened. 

O’Leary referred to one of his relatives and her partner by name in a Facebook post where he lambasted them for their sexual preference and then threatened to “tear the concrete up with your face and drag you back to your doorstep,” among other things. Neither he relative or her partner discovered the post on O’Leary’s page, but O’Leary’s cousin, who was Facebook friends with O’Leary, saw the threatening post and relayed the content of the post to the victims. The trial judge ruled that O’Leary could be convicted of violating the statute by virtue of his threatening Facebook post, even though the post was received only by the victim’s family member.

On appeal, the appellate court confirmed that a person can violate Florida Statute 836.10 through Facebook activity. The panel of judges found it immaterial that O’Leary never asked anyone to view the post and never addressed it to anyone.  The court reasoned that by posting his threats directed to his family member and her partner on his Facebook page, it was reasonable to presume that O’Leary wished to communicate that information to all of his Facebook friends, including the victim’s family members with whom he was Facebook friends.

The trial court sentenced O’Leary to 10 years imprisonment followed by two years of community control upon release. The maximum he could have received is 15 years.

An Oklahoma mother was arrested for allegedly attempting to sell her children on Facebook, Mashable reports.

Misty VanHorn, a mother of two in Oklahoma, was arrested last month for alleged trafficking of minors on Facebook by offering her 10-month old and her 2 year-old for $4,000. According to the police report, VanHorn offered the kids several times on the social network — offering the 10-month old girl for $1,000, or a package deal with the two of them for $4,000. And she apparently had a taker. 

“Just come to Sallisaw, it’s only 30 minutes away and I’ll give you all of her stuff and let y’all have her forever for $1,000,” read VanHorn’s Facebook message to the Fort Smith woman, as unearthed in the police report by the Daily Dot.

Ironically, police believe VanHorn wanted the $1,000 to bail her boyfriend out of jail. Now she’s being held on a $40,000 bond. The children are in the custody of the state’s department of human services, which alerted the police in the first place.

It amazes me the things people will say and do on social media. Last year, I reported on a woman who was arrested for allegedly attempting to hire a hitman over Facebook to murder the father of her child. This is yet another example of how what you say on social media can (and will) be used against you.

As recently as a few years ago, authentication proved to be a substantial hurdle for an attorney seeking to admit social media content into evidence. Recent decisions, however, reveal a trend toward admission reports Corporate Counsel.

The Rules of Evidence require that evidence must first be “authenticated” prior to be admitted at trial. It requires a showing that the evidence in question is what its proponent claims. In other words, it must be reliable and overcome any reasonable question that the evidence has been fabricated. 

Social media sites present unique challenges for authentication. Since social media profiles can be easily created by anyone with an email address and some spare time, questions often arise as to whether the social media profile offered into evidence is the actual profile of a party in litigation or whether a particular communication was sent by a party as opposed to someone else who may have had access to their profile. Based on the uncertainty of the reliability of someone’s purported social media profile, admitting social media content into evidence is not as easy as pointing to someone’s Facebook profile bearing their name and photograph to establish the identity of the individual associated with the social media account.

In an instance of what Judge Glenn T. Harrell Jr. of Maryland’s highest court has described as the “technological heebie jeebies,” several recent courts have required more, expressing concern with false profiles, account hacking, and “Photoshopping.”  Recent cases illustrate that litigants may use the indelible digital trail left by users of social media, their digital devices, or obtained directly from the social media provider to help authenticate social media evidence.

The classic case of disputing ownership of social media postings and messages were addresses in two recent cases: Griffin v. State, 19 A.3d 415 (Md. 2011) and State v. Eleck, 23 A.3d 818 (Conn. App. Ct. 2011). In these cases, courts were sympathetic to claims of falsely created accounts or “hacked” messages. The Griffin court held that “the date of birth of the creator and her visage in a photograph on the site” was insufficient to authenticate the purported owner’s authorship of a message. Similarly, Eleck held that authenticity was not established by “the fact that [the claimed author] held and managed the account.”

Nevertheless, as Eleck noted, “the circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium”; both cases pointed to forensic examination of devices or validation by social media providers as potential means of authenticating such evidence. As use of these methods of authentication becomes more widespread, it seems likely that courts will not look favorably upon evidence put forth without forensic support.

At the same time, traditional means of authentication, such as the distinctive content of a statement, retain force in the world of social media. In Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012), Texas’s highest criminal court upheld a murder conviction that relied heavily on postings from several MySpace accounts attributed to the defendant—despite the lack of any forensic evidence or outside authentication. After describing in detail several dozen messages, photographs, and other details linking the profiles to the defendant, the court ruled that the remote possibility “that the [defendant] was the victim of some elaborate and ongoing conspiracy” went to the weight of the evidence, not its admissibility. The Tienda court did cite Griffin, however, for the suggestion that in future cases, proponents of social media evidence would be well advised to include extrinsic proof of authenticity.

While these cases begin to provide some clarity as to what courts may require to authenticate social media content, there is still no clear standard that has emerged across all jurisdictions. These cases simply represent the tip of the iceberg. The lesson that can be taken away from these cases is that, more likely than not, courts will require more information than simply the social media user’s name, profile picture, and date of birth to confirm the authenticity of the profile. The more information to support the inference that the social media content is of the user that it purports to be, the better.

A Hawaii man who posted a video of cracking open a beer bottle and taking a swig while driving on the LiveLeak video-sharing website is later arrested by the police for consuming alcohol while driving a motor vehicle, CNN reports.

The man, Richard Godbehere, posted the clip in February under the title “Let’s Go Driving, Drinking!” to LiveLeak, a video-sharing site where users can vote on and donate to videos they like.

Even so, he appeared surprised when police showed up at his house in Kapa’a, Hawaii, to arrest him on charges of consuming alcohol while operating a vehicle and driving without a license.

Social networks offer platforms for us to share everything on the Internet, from our relationship statuses to our political leanings and photos of our pets and children. But some people are discovering that what they share on Facebook, Twitter and other platforms constitutes evidence that can be used against them in a court of law.

“It’s like that old saying,” said professor Susan Rozelle, who teaches evidence and criminal law at Stetson University College of Law in Gulfport, Florida. “Don’t put anything on your Facebook page you wouldn’t tell your mother, or the local police department.”

What people say and do on social media can certainly be used against them in civil and criminal proceedings. While there are legal hurdles to introduce social media evidence in court, such as proving the evidence is “authentic” and not inadmissible hearsay, more and more courts are allowing social media evidence to make or break a party’s case (or, as we see here, provide the grounds for an arrest). 

A Miami-Dade judge declared a mistrial in a murder case after a defense lawyer posted a photo of her client’s leopard-print underwear on Facebook, according to the Miami Herald.

The defendant in a murder trial accused of stabbing his girlfriend to death received clothes from his family to wear during trial. When Miami-Dade corrections officers lifted up the pieces for a routine inspection, his public defender snapped a photo of the defendant’s briefs with her cellphone. While on a break, the lawyer posted the photo on her personal Facebook page with a caption suggesting the client’s family believed the underwear was “proper attire for trial.”

Although her Facebook page is private and can only be viewed by her friends, somebody who saw the posting notified Miami-Dade Judge Leon Firtel, who declared a mistrial the Herald reported. The public defender was immediately fired.  A new trial date, with a new lawyer, has yet to be set.

This case serves as yet another reminder of how attorneys must use social media responsibly in their cases. I attended law school with the public defender in this case. This situation demonstrates that even bright and talented attorneys can derail a successful legal career in a moment of poor judgment. Law firms must continue to educate their attorneys, staff, and clients how social media can severely impact their cases and careers, both inside and outside the courtroom. 

A Florida trial judge’s status as Facebook friend of prosecutor constitutes legally sufficient ground for disqualification, according to the Fourth District Court of Appeals.  

Pierre Domville, a criminal defendant, moved to disqualify a trial judge and submitted an affidavit averring that the prosecutor handling the case and the trial judge are Facebook “friends.”  Domville further averred to believe that the judge could not “be fair and impartial,” and attributed adverse rulings to the judge’s Facebook relationship with the prosecutor. The trial judge denied the motion as “legally insufficient” and Domville appealed.

The Fourth District Court of Appeal quashed the trial court’s order denying Domville’s motion to disqualify in light of a recent Judicial Ethics Advisory Committee (JEAC) prohibiting such “friendships.” Florida Code of Judicial Conduct Canon 2B  states that “[a] judge shall not . . . convey or permit others to convey the impression that they are in a special position to influence the judge.” In JEAC Op. 2009-20 (Nov. 17, 2009), the Committee concluded that the Florida Code of Judicial Conduct precludes a judge from both adding lawyers who appear before the judge as “friends” on a social networking site and allowing such lawyers to add the judge as their “friend.” The Committee determined that a judge’s listing of a lawyer as a “friend” on the judge’s social networking page — “[t]o the extent that such identification is available for any other person to view” — would violate Florida Code of Judicial Conduct Canon 2B.

Specifically, the Committee concluded that when a judge lists a lawyer who appears before him as a “friend” on his social networking page this “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.” The Committee emphasized that ”a judge’s activity on a social networking site may undermine confidence in the judge’s neutrality. Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality.”

Applying this JEAC advisory opinion to the allegations contained in Domville’s motion and affidavit, the appellate court held that Domville ”alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” The Court therefore quashed the order denying disqualification of the trial judge and remand to the circuit court for further proceedings.

The aforementioned case is styled Pierre Domville v. Florida, case no. 4D12-556 (Fla. 4th DCA Sept. 5, 2012).

At the crossroads of social media discovery, there is no one-size-fits-all approach. The appropriate balance of discovery and privacy depends on the particular facts and circumstances of each case, a careful analysis of applicable law, the requested content, and the user’s expectation of privacy.