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.