Litigants on social networks

[ruonthelist]

A few months there was a thread on the issue of whether ALJs should check the Facebook, MySpace, etc. pages of claimants. In case anyone is interested in following up the discussion, the ABA journal recently had an article on a state court judge who does so in the sentencing phase. Here is the link:

www.abajournal.com/magazine/article/web_2.uh-oh/

With social networkers busily constructing walls of information about themselves, it was only a matter of time before the courts took notice.

MySpace, Twitter and Facebook present ample opportunities for defendants, jurors, adjudicated of­fenders and even attorneys to blab, brag and leave hints about their activities, legal and otherwise. And a judge in Saginaw County, Mich., says that he uses social networking sites to keep track of adjudicated offenders under his jurisdiction.

“When I get a defendant going through the sentencing process,” says District Judge A.T. Frank, “if they’re 20- or 30-somethings, I’ll see if they have a MySpace or Face­­book page and do a search of that.”

Frank, who has been on the county bench since 2006, occasionally finds information that leads him to take action. “On a couple of occasions we found they violated” terms of probation, he says. “In one case ... the probationer had a Face­book page and we found out that she posted a picture of her smoking a blunt”—a cigar hollowed out and filled with marijuana.

The use of information gleaned from social networking sites raises a raft of legal issues, not the least of which is whether it is admissible in court. Frank says it depends at what point in the process the information is used.

“Can its use be challenged? Not so much in sentencing, because there’s more leeway and it’s harder to challenge once they are adjudicated,” he says. “But they can have a hearing.”

If the information were to be pre­sented as evidence to convict, as in a case where a minor is charged with possession of alcohol, the judge says he would likely consider it “a prior bad act and ... not allow it in.”

[deminimis]

A judge's independent investigation of the facts of a case would be a violation of the code of judicial conduct in my state: "A judge must not independently investigate facts in a case and must consider only the evidence presented." The canons do not distinguish between civil or criminal cases and do not distinguish between the guilt or sentencing phases in criminal cases.

[privateatty]

Jan 26, 2010 16:19:05 GMT -5 ruonthelist said:

A few months there was a thread on the issue of whether ALJs should check the Facebook, MySpace, etc. pages of claimants. In case anyone is interested in following up the discussion, the ABA journal recently had an article on a state court judge who does so in the sentencing phase. Here is the link:

www.abajournal.com/magazine/article/web_2.uh-oh/

With social networkers busily constructing walls of information about themselves, it was only a matter of time before the courts took notice.

MySpace, Twitter and Facebook present ample opportunities for defendants, jurors, adjudicated of­fenders and even attorneys to blab, brag and leave hints about their activities, legal and otherwise. And a judge in Saginaw County, Mich., says that he uses social networking sites to keep track of adjudicated offenders under his jurisdiction.

“When I get a defendant going through the sentencing process,” says District Judge A.T. Frank, “if they’re 20- or 30-somethings, I’ll see if they have a MySpace or Face­­book page and do a search of that.”

Frank, who has been on the county bench since 2006, occasionally finds information that leads him to take action. “On a couple of occasions we found they violated” terms of probation, he says. “In one case ... the probationer had a Face­book page and we found out that she posted a picture of her smoking a blunt”—a cigar hollowed out and filled with marijuana.

The use of information gleaned from social networking sites raises a raft of legal issues, not the least of which is whether it is admissible in court. Frank says it depends at what point in the process the information is used.

“Can its use be challenged? Not so much in sentencing, because there’s more leeway and it’s harder to challenge once they are adjudicated,” he says. “But they can have a hearing.”

If the information were to be pre­sented as evidence to convict, as in a case where a minor is charged with possession of alcohol, the judge says he would likely consider it “a prior bad act and ... not allow it in.”

Have these Art. III Judges ever heard of the State/Federal Rules of Evidence? Hello?!

For Art. I Judges, you can let in hearsay, documents, with exceptions noted. Same point as above.

BTW, deminimis's post is hardly deminimis!

[privateatty]

Jan 26, 2010 21:32:38 GMT -5 privateatty said:

Jan 26, 2010 16:19:05 GMT -5 ruonthelist said:

A few months there was a thread on the issue of whether ALJs should check the Facebook, MySpace, etc. pages of claimants. In case anyone is interested in following up the discussion, the ABA journal recently had an article on a state court judge who does so in the sentencing phase. Here is the link:

www.abajournal.com/magazine/article/web_2.uh-oh/

With social networkers busily constructing walls of information about themselves, it was only a matter of time before the courts took notice.

MySpace, Twitter and Facebook present ample opportunities for defendants, jurors, adjudicated of­fenders and even attorneys to blab, brag and leave hints about their activities, legal and otherwise. And a judge in Saginaw County, Mich., says that he uses social networking sites to keep track of adjudicated offenders under his jurisdiction.

“When I get a defendant going through the sentencing process,” says District Judge A.T. Frank, “if they’re 20- or 30-somethings, I’ll see if they have a MySpace or Face­­book page and do a search of that.”

Frank, who has been on the county bench since 2006, occasionally finds information that leads him to take action. “On a couple of occasions we found they violated” terms of probation, he says. “In one case ... the probationer had a Face­book page and we found out that she posted a picture of her smoking a blunt”—a cigar hollowed out and filled with marijuana.

The use of information gleaned from social networking sites raises a raft of legal issues, not the least of which is whether it is admissible in court. Frank says it depends at what point in the process the information is used.

“Can its use be challenged? Not so much in sentencing, because there’s more leeway and it’s harder to challenge once they are adjudicated,” he says. “But they can have a hearing.”

If the information were to be pre­sented as evidence to convict, as in a case where a minor is charged with possession of alcohol, the judge says he would likely consider it “a prior bad act and ... not allow it in.”

Have these Art. III Judges ever heard of the State/Federal Rules of Evidence? Hello?! Judge Frank may not let it in, but does he erase it from his memory too?

For Art. I Judges, you can let in hearsay, documents, with exceptions noted. Same point as above.

BTW, deminimus's post is hardly deminimus!

[decadealj]

I hate to burst any expectations about "seeking truth" issues but ALJs are limited to the issues developed by the agency. Even when you get a fraud development issue, the agency screws it up so as to make it impossible to address it within the regs. E.G. I had a video tape report from a neighbor that the claimant was splitting wood but wished to remain anonymous; SSA response was to submit it to the claimant who denied he was the subject of the video. Its just like issues raised by the payment center that the claimant was engaged in SGA and you do a supp hearing and the claimant denies it under oath- then what? SSA has made it impossible to address fraud issues raised anywhere in the record. If anyone has been successful in truly developing this issue, please respond as to how you developed it and the result.

[decadealj]

P.S. I relied on the presumption of validity of official records in payment center cases.

[Propmaster]

How do judges get access to these people's pages? Do they "friend" them? Or are these people who leave their pages "open" for anyone to visit? I can never find out info about people on these sites.