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Facebook and the Dangers of Online "Evidence"

Last Thursday I represented a client at a warrant application hearing. This means that rather than the police being called to a scene and arresting someone, a person goes to the courthouse and fills out an application for a warrant. The case is set down for a hearing before a magistrate judge who will determine whether probable cause exists to issue an arrest warrant.

The short version of the facts of this case were that the person petitioning for the warrant accused my client of threatening her and also causing damage to her car to the extent of $3000+. The petitioner is married to my client's ex husband and there have been problems in the past.

During the drawn-out hearing, the petitioner produced a printed piece of paper that was a facebook message allegedly sent by my client to the petitioner's husband in which she admits to causing damage to the car. I strongly objected several times to this "evidence" being admitted due to the lack of a proper foundation (or any foundation really) establishing even an iota of reliability. I also argued that this would not be admissible in future hearings if this case were to proceed, and that this document had not been authenticated. Additionally, I appealed to common sense when pointing out that this printed conversation was 1) one-sided, since it only showed conversation supposedly from my client and no reply from anyone else, 2) didn't even look like a print out of a facebook page, 3) could easily have been edited or manipulated, 4) that it was dated the very next day after the petitioner's husband violated a protective order by striking my client in the face - and a warrant was issued for his arrest, and 5) it was written in extremely vulgar, broken English with very poor spelling, yet my client was well-spoken.

After I made those arguments the Judge allowed the petitioner to log into her husband's facebook account (since he had just been arrested in the courtroom on that warrant I was just talking about) on the clerk's computer to see if the message was there. Sure enough, there was the series of messages and all of them had my client's name and pretty little picture right next to them.

I renewed all of my original objections, argued my case based on the testimony of the petitioner and my client, and the Judge asked my client to sit in the jury box while they filled out the warrant to arrest her.

Stunned, I sat back down in the gallery as the next case was called. I couldn't believe my client was being arrested. The standard is very low at a warrant application hearing, much lower than it would be at an evidentiary hearing or trial. Nonetheless, I couldn't believe the Judge was arresting my client based on this facebook message.

As I sat there, I had one last idea. I pulled out my iPhone, opened my Facebook app, and searched for my client's name. Just as I suspected, there were two accounts with the same name and both had the same picture. One account, my client's real account, had 93 friends, all kinds of posts on the wall, a backgrounds picture of her kids, and lots of photos. The other account had no pictures (other than my client's), no background, no posts, and only 1 friend. That friend was of course.... my client's ex-husband - the petitioner's current husband.

As soon as the current hearing was finished, I asked the Judge to re-open evidence in our case and told her what I had discovered in the past 10 minutes. She again had the petitioner log into her husband's facebook account on the clerk's computer. I was able to show the Judge that the message came from the account with only 1 friend (petitioner's husband). That he can't even see my client's account, nor can she see his, because she has him blocked. Even better, we were able to see that this fake account was only a month old and wasn't even created until the same day this message was sent where my client supposedly admitted to damaging the car.

The Judge tore up the warrant, dismissed the case, and released my client.

The digital age we live in is ripe with great information. Text messages, phone records, GPS locations, emails, cell tower tracking, facebook pages, etc. provide a wealth of information for legal professionals in every practice area from criminal law to divorce. They also provide an ever-increasing amount of material for prosecutors and law enforcement.

We all know by now to be on the lookout for spam, check scams, and never to give out account or credit card information over email. But as computers, software. and the people who use them become more sophisticated, it may be increasingly difficult to tell what is genuine from what is fabricated.

In this case, it barely required any sophistication at all to create falsified "evidence". Anyone can setup a facebook account, name it whatever they like, and use any picture they find on the internet. In a matter of minutes the petitioner and/or her husband were able to create a fake account, a compelling story, and fake messages to support it. It almost got my client arrested. Be careful what you put out there for the world to see and remember to scrutinize and question the validity of what people send to you.