Saturday, July 19, 2008

New evidence in the internet age: Your Facebook smiley icons can and will be used against you in a court of law

After reading a post over at Doc Berman's shop about the use of Facebook photos and profiles to criticize defendants' character, reacting to this AP story, I was interested to read about a similar situation arising from a DWI case in Waco ("Drunken driving sentences hard to call," Tribune Herald, July 19), where FaceBook pictures were used to portray the defendant as uncaring and remorseless about causing the death of her cousin:

A week before Lacey Kutscherousky went to trial for killing her cousin in a drunken driving accident, she wrote on one of her social networking Web sites that her mood was “breezy.” She punctuated that emotion with a yellow smiley face.

This week, Kutscherousky remains in the McLennan County Jail awaiting transfer to prison to begin serving her two-year sentence. Her mood has changed.

“She is very depressed and just anxious to get her sentence completed,” said her attorney, Rod Goble. “She still has a great deal of remorse for the accident.”

The 18-year-old former West High School cheerleader, who had planned to go to Texas A&M University in the fall, pleaded guilty to intoxication manslaughter last week in the March 2007 alcohol-related crash that killed her 19-year-old cousin and best friend, Ashton Marek.

Kutscherousky and her family, who pleaded with jurors to spare her from prison, cried throughout her three-day trial in Waco’s 54th State District Court. However, Facebook postings by Kutscherousky and her friends that were distributed to jurors show an apparently carefree Kutscherousky mugging for the camera and partying with friends three months after her cousin died.

The use of Facebook in this case bothers me a bit more than does the instance Doug cited, where pictures of the defendant at a Halloween party with alcohol in the scene were taken two weeks after a drunk driving crash seriously injured a woman. In the Kutscherousky case, pictures of a "carefree" defendant were taken three months after the event and didn't include alcohol. It seems unreasonable to expect pure joylessness from an 18-year old cheerleader for months on end, even following her cousin and best friend's death. Following a tragedy are we really not allowed a smile, a laugh, a "carefree" moment? For how long?

Prosecutor Melanie Walker told the Tribune Herald, jurors “took it very seriously, and the truth is, killing somebody is a big deal. ... I guess by their verdict they said that it doesn’t matter what the victim’s family wants, and no matter who you are, prison is the appropriate sentence. It also was pretty clear that they weren’t convinced that she had completely changed.”

Well by all means, if you don't think she has "completely changed," two years in prison will no doubt solve any residual problems. Right?

If someone says they're on the wagon and investigators find a Facebook picture with a drink in their hand, that's one thing. But "mugging for the camera" is hardly a crime, and what 18 year old doesn't spend most of their time with their friends? I don't think that's particularly probative evidence.

Also, while these cases involved public social networking sites, we've also seen instances in Texas where prosecutors encourage officers to lie to juveniles in order to get permission to go onto private social networking sites.

Doug's right these are "pre-party-night cautionary tale[s]" - one frequently sees social networking site with party pictures and smiling faces, but one imagines that seldom do those posting them think about how they might be portrayed out of context.

I also wonder if more discussion isn't needed about what type of social networking flotsam and jetsam actually constitutes evidence? Does it tell us anything about someone's character that, months after a tragedy, at a particular moment sitting alone in front of their computer a teen girl categorizes her mood as "breezy"? Is the use of a smiley face on the web really evidence she didn't care about her cousin's death, and if not why present it to the jury? Will older jurors interpret such icons the way her peers would, or have any context for what it means (e.g., that "breezy" is a much-used Facebook mood designation)?

The use of evidence from Facebook and other social networking sites that relates directly to a crime will always be fair game. But I question the wisdom of portraying young people's relative level of remorse merely from a smiling photograph. That seems like a cheap shot.


Ron in Houston said...

Yeah, it was a cheap shot; however, it's also a warning to people who social network.

I'm seeing more and more Facebook evidence in court.

Anonymous said...

Sort of reminds me of the Routier birthday video. In that case they only showed a portion of the video to make it look as though no grief was expressed. Seems to me a person should be convicted on the evidence of the actual crime rather than their reactions after the this case months after the crime. Makes me wonder if this young woman was doing a smiley face the night of the accident...I seriously doubt it. Seems like everything can be used against us in a court of law these days. And we call it justice.

Anonymous said...

Justice is all about vengence, punishment and showing em who's boss!

Public Safety and Deterrence are code words for a mean spirited laws and absolutely no rehabilitation for someone who has fallen afoul of the law.

As for Jurors, a Holier Than Tou temperment is encouraged by society, religion and prosecutors.

And we consider ourselves enlightened in the Twenty First Century. What a mess!

Anonymous said...

I'd say she got off rather light.

My niece, who was a high school junior, got 12 years for intoxication manslaughter, and she only killed one person.

Stephen said...

I've had a lot of experience with grief.

You want people to feel normal emotions. Not to mention, with severe grief, people will cycle their emotions without being able to control them.

Which includes periods of "inappropriate" emotion.

So all that evidence shows is that the kid is either starting to heal or is cycling. Neither of which means anything probative.

Robert Langham said...

Prosecutors don't want justice, they want to win and hang another skull on their racks. If guilt or innocence doesn't matter, where do you think justice fits in?

Juries need to realize this.

Anonymous said...

Well - if the purpose of a trial is to seek and dispense justice and get to the truth, why exclude "the truth" such as Facebook stuff, especially when the defendent is claiming remorse and sorrow about their bloody hands?


Anonymous said...

Plato, what "truth" does a smiling picture provide about something that happened months ago? That's not "truth," it's misrepresentation, claiming something is evidence that has nothing to do with the case.

Does having "remorse" mean you never again crack a smile or enjoy time with friends? (at least until after your court date?) Is that the advice you'd give your daughter after a tragedy? That's pretty sick. If it was the next day or a week late that's one thing, but three months? Like Stephen said, that's totally normal not proof she's a bad kid.

Gritsforbreakfast said...

Plato, I'm with 2:17. What "truth" does a photo tell if it's taken three months after the fact?

She's a cheerleader, for heaven's sake! Mugging for the camera is almost her job!

Anonymous said...

Grits, you don't go so far as to say that this evidence should be withheld from the jury, just that it's a "cheap shot." Would you go so far as to say that there should be a bright line rule excluding such evidence altogether, putting the burden of proof on the prosecution to show that the evidence is likely to be probative?

As much of a stretch as this seems to have been for the prosecution, this is one of the reasons we have juries - to determine whether or not she was remorseful, and to punish her accordingly. Had this facebook evidence been presented alongside a lot of other evidence that showed a lack of remorse, then a jury probably would have given it some weight. If it was all the prosecution had in showing her lack of remorse, then the jury probably would have ignored it.

I don't know what other evidence the prosecution presented about her state of mind, so I really can't say whether or not this was a cheap shot or not. But all sorts of evidence is offered to prove state of mind, and evidence gleaned from facebook should not be put under any special burden. The value of this evidence is for the jury to decide.

Gritsforbreakfast said...

8:50, evidence must be probative to be admitted. There is all sorts of evidence that can't be prsented because it doesn't relate to the crime - e.g., past criminal history if the D doesn't testify. Also, the D can't tell the jury e.g., about past misconduct by the DA's office. Evidence must pertain to the current case.

In this instance, IMO, for the picture to be understood would also require the jury to hear an expert from a hospice or grief counselor to explain how people behave when grieving and how to understand what Stephen called "inappropriate" emotional moments in such a context. Without that, the evidence is a smear, a cheap shot, and no, it shouldn't have been allowed into evidence because it was not probative, it had nothing to do with the case.

That said, there' no "bright line" protecting Facebook, and I clearly said that "The use of evidence from Facebook and other social networking sites that relates directly to a crime will always be fair game."

Anonymous said...

Defense attorneys should be making their clients aware of the risks of Internet networking when they're facing charges or are in a trial. If the person ignores their advice, it's their own fault if they sink their case, but it's also true that a single snapshot at a point in time after a tragedy isn't the whole picture.

It might make a difference if the person puts the photo or remarks on their own page. You can't totally control who takes photos of you and distributes them, but you can avoid putting damning pictures or remarks about yourself on your own space.

Anonymous said...

Wasn't there a case of a marine's wife out in California? She was charged with poisoning him with arsenic and one of the "pieces of evidence" was that she was sleeping with several of his friends after his death? She was recently exonerated. The original arsenic findings were found to be inaccurate. She addressed her behavior after the death of her husband by saying that she was lonely and she took comfort in his friends?

Everyone grieves differently.

Anonymous said...

Hi from across the pond here, can I have my 2 Eurocents on this matter? I have seen this case and was somewhat alarmed by the implications of this case. You have probably seen lots of cases where the press has been using peoples face book/myspace websites in thier stories. (Spritzer!) But more particularly in cases like the Amanda Knox case in Italy, where her photos on myspace and her nickname "Foxy Knoxy" were used to vilify her. A rather intersting TV show on the UK's Channel 4 was showing how harmless high jinks were turned by a salacious press into vilification of all the students and the town they resided in as a den of vice and inequity. Does this mean you should be wary about posting anything on line not only after you have been accused of a crime but beforehand too?

Anonymous said...

I saw myspace evidence used to assert the promiscuity of a cheerleader, who was accusing the high school coach of indecent contact

Anonymous said...

This is not a comment really but an introduction of a novel called "Spieltrieb" by Juli Zeh. Great book.