2013 Updates

1. 2013 Updates 1) Latest Statistics and Use of Social Media 2) Zimmerman case 3) Attorney Duties and Ethics 4) Recent Court Decisions

2. Statistics and Uses • 2013 User Stats • Facebook 1.26 billion • LinkedIn 238 million • MySpace 36 million • MyLife 63 million • Twitter 500 million • YouTube 1 billion • 91% of online adults use social media

3. Statistics and Uses cont’d • Potential evidence • Profiles, List of friends • Group memberships • Messages, Chats • Tweets • Photos, videos • Tags, GPS locations • Check-ins • Login timetables

4. Statistics and Uses cont’d Recent survey by LexisNexis: Most use Facebook and YouTube in their investigations.

5. Statistics and Uses cont’d • Use by Government • Tracking probationers and parolees • Linking defendants in conspiracy cases • “Friending” suspects • Access through cooperating witnesses • Warrants for user account information • Twitter government requests up 80% from 2011 to 2012 • Google government request up 40% from 2009-2011

6. Statistics and Uses cont’d • Facebook • Requests for records • Fax 650-644-3229 • Email: subpoena@facebook.com • Mail: Facebook, Inc. Attn: Security Dept/Custodial of Records 1601 California Avenue Palo Alto, CA 94304

7. Statistics and Uses cont’d • Facebook data available • Email address • Registered mobile number • Profile contact info • Shares, notes, wall postings • Friend and Group listings • Photos • Private messages • IP logs

8. Statistics and Uses cont’d • Use by universities, colleges, and schools: • Universities and colleges use to: • Investigate underage drinking and violations of dorm rules • Investigate honor code violations • Identify potential threats against the school or other students • Schools are using social media to combat bullying and cyberbullying • Universities and schools are reporting to law enforcement agencies and aiding in their investigations

9. Statistics and Uses cont’d • 2 Teens arrested in Florida for bullying that lead to girl’s suicide. • Many messages of hate on many forums • “I hate u” • “you seriously deserve to die” • Father of teen arrested claims her Facebook account was hacked – that she could not have posted the message: • “Yes IK I bullied REBECCA nd she killed her self but IDGAF.”

10. Statistics and Uses cont’d • Parents of arrested teen state that they monitor her Facebook account. • Parents did not know about Kik and Ask.fm accounts. • Kik: instant messaging application on mobile devices. 50 million users • Ask.fm: social networking site, users can remain anonymous. 65 million users • Associated with many cyberbullying cases

11. Zimmerman case • Prosecution was accused of failing to personalize or humanize the victim, Travon Martin • No teacher, minister, coach, best friend testified • Parents testified only regarding his voice on the 911 call • No witness described the victim as a person

12. Zimmerman case cont’d • Social media evidence against the victim included: • Text messages discussing fights, his interest in buying a gun, and his recent suspension from school. • Discussions of marijuana use and purchase • Video the victim took of “two buddies beating up a homeless guy.”

13. Zimmerman case cont’d • Defense claims of relevancy • The victim’s familiarity with guns, seeking to buy guns, ongoing fighting, use of drugs, looking to buy drugs was relevant to the defense that Zimmerman had no choice but to act in self defense. • The victim’s use of, or withdrawal from, drugs may have sparked the victim's aggression

14. Zimmerman case cont’d • Defense motion to allow victim’s text messages, photos, and school records was denied because it was unfairly prejudicial and not relevant. The judge also had authentication issues because there was nothing that showed that the victim himself sent the messages. But… • It could all be allowed in if the prosecution opened the door on the victim’s character by presenting evidence beyond the 5-minute encounter between the victim and the defendant.

15. Attorney Duties and Ethics • Ethics • Competency

16. Duties and Ethics • Follow Rules of Professional Conduct • MRPC 1.1 Competence (adequate preparation) • Comments: “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation.”

17. Duties and Ethics cont’d • MRPC 4.1 Truthfulness in Statements to Others (cannot “Friend” request using a false name) • MRPC 4.2 Communication With a Person Represented by Counsel (must have consent of counsel) • MRPC 4.3 Dealing with an Unrepresented Person (must state your role in the matter)

18. Duties and Ethics cont’d • Attorney ethical issues in social media • NY, NJ, KY, NH, PA • All have bar opinions (state or local) on how and when attorneys can access/use social media in their investigations • Most limit social media inquiries made of jurors • Cannot contact or “Friend.” • Can search and read public sites • No Michigan Bar opinions – at this time. • SBA Ethics Hotline 877-558-4760

19. Duties and Ethics cont’d • Duty to Google??? • In an Indiana civil case, the case was dismissed because of a lack of due diligence in the plaintiff’s attempt to locate the tortfeasor • The court noted in a footnote: • “We do note that there is no evidence in this case of a public records or internet search for Groce or the use of a skip-trace service to find him. In fact, we discovered, upon entering “Joe Groce Indiana” into the GoogleTM search engine, an address for Groce that differed from either address used in this case, as well as an apparent obituary for Groce's mother that listed numerous surviving relatives who might have known his whereabouts.”

20. Current cases • People v. Dabish (Mich. App.) (unpub) (2013) • Def claimed I.A.C. for failure to investigate email, telephone, & social media accounts. • Atty tried to get emails admitted to show that the victim was depressed, unstable, and abused drugs. • Trial court agreed they were relevant, but excluded them because they were not properly authenticated. • No showing that they were actually written and sent by the victim. • Id of the email address alone was insufficient. • Mere use of the email address did not show that the victim actually sent the emails. • Not I.A.C., emails showed some investigation and def failed to show how counsel could have authenticated them.

21. Current cases cont’d • Campbell v. Texas (Tex. App.) (2012) • Facebook messages from def to victim authenticated in dv case • Internal characteristics used to authenticate • Def’s unique speech pattern (native of Jamaica) • Reference the incident and charges, only known by a few at the time • Circumstantial evidence also used • Def’s account, testified that only he and the victim had the password • Victim testified she could not access the account at the time

22. Current cases cont’d • Simmons v. Kentucky (KSC – unpub) (2013) • Def objected to admission of a diary containing copies of text messages between the def and CSC victim • Victim deleted the texts but wrote the contents in her diary before she deleted them • Not a violation of KRE 901 (authentication) – because not admitted into evidence • Not a violation of best evidence rule – not admitted • Testimony allowed under KRE 803(5) (recorded recollection) because victim could not remember exactly what the texts said

23. Current cases cont’d • Hoffman v. Delaware (DSC) (2012) • Def pled to manslaughter for killing a man in a traffic accident while texting and DUI • Not an abuse of discretion to find the def’s failure to remove pics of her “glamorizing alcohol” from her MySpace account after the accident was an aggravating factor in sentencing, especially since the victim’s family viewed the photos.

24. Current cases cont’d • State v. Church (Tenn. Crim. App.) (2013) • Use of def’s nickname on MySpace page upheld • Investigator subpoenaed records • Subscriber report had def’s name and user number • Message on page sent from nickname • Photo of def on page • Not inadmissible hearsay • Party admission, his own statement • The court did caution the prosecution to be very careful and omit any references from the MySpace page that referred to the def’s prior jail time

25. Current cases cont’d • Prater v. Arkansas (A.S.C. – 2012) • Not I.A.C. when def counsel failed to use pics of victim taken at a party days after rape • Def believed that the pics showed that the she did not look like a rape victim • Def admitted to sex, but claimed it was consensual • Counsel stated he did not believe that they were relevant and could inflame the jury • Court: victim did not testify that she could not leave her home or be social after the rape. • Not relevant and counsel’s decision to not use them was trial strategy

26. Darwin Award • 21-year-old student assaults 56-year-old woman wearing same sweatshirt he wore in multiple Facebook pics.

27. Darwin Award cont’d • Police matched surveillance footage and the Facebook post. • The sweatshirt had custom lettering on the back: “Stugotz 27” An Italian slang meaning “balls.” The same word appears next to his name on his Facebook page. • Arrested for assault and robbery.

28. Let’s Go TIGERS!!!!!