The National Law Journal
October 15, 2007

By Vesna Jaksic

At Malbrough & Lirette in Houma, La., a secretary browses MySpace and Facebook Web sites each day. She’s not checking the online social networking sites for personal reasons, but is performing one of her job duties.

“It’s an everyday occasion,” said Joan Malbrough, a partner at the three-attorney firm, which handles family law, personal injury and corporate law matters. “Every new client we do a MySpace and Facebook search on to see if they or their spouse have any useful information.”

In one case, Malbrough said she helped secure shared custody for the father after finding his wife had posted sexually explicit comments on her boyfriend’s MySpace page. In another case, a husband’s credibility was questioned because, on his MySpace page, he said he was single and looking.

Lawyers in civil and criminal cases are increasingly finding that social networking sites can contain treasure chests of information for their cases. Armed with printouts from sites such as Facebook and MySpace, attorneys have used pictures, comments and connections from these sites as powerful evidence in the courtroom.

“It’s going to be more and more helpful in the future,” said Mark Diebolt, a deputy county attorney in Pima County, Ariz.

The free sites allow users to post comments, pictures and videos, build online networks and communicate with others. Users can set different privacy settings, but many have public profiles that anyone can view. The popularity of these sites continues to grow — Facebook alone has more than 42 million active users.

Diebolt said an eyewitness recently identified a first-degree murder suspect in a group photograph posted on MySpace. Such social networking sites have also been helpful in prosecuting gang-related crimes.

“[Gang members] won’t say they committed a crime, but they talk about some of the behavior and antics which relate to why we’re looking for them,” he said.

John Palfrey, executive director of The Berkman Center for Internet & Society at Harvard Law School, said that, because social networking sites are fairly new, there are not many court decisions about the admissibility of information from them in court. But judges have indicated that they will treat this information like other electronic evidence, Palfrey said.

“There is a sense that this information would be admissible if it’s verifiable, as with any other form of electronic discovery,” said Palfrey, whose focus at Harvard Law School is Internet and law. “The one issue is going to be authentication as far as what is said online and who said it.”

Palfrey said law enforcement officials already use fake names to obtain information from social networking sites in criminal proceedings, such as when searching for a sexual predator.

Adina Schwartz, associate professor at John Jay College of Criminal Justice in New York, said users of a social networking site should be aware that any postings on their page could be obtained by friends in their network, who could then post it on other public sites.

“There is nothing to prevent one’s friends from going there and copying it on another Web site,” she said.

A defense tool
D. Jesse Smith, a solo practitioner in Tucson, Ariz., said social networking sites can be helpful for defense lawyers. In a recent misdemeanor assault case, Smith said he was able to prove someone other than his client was the aggressor who started the fight because his MySpace page contained a video of him beating someone up.

“I think that’s why he was found not guilty,” Smith said of his client. “It’s a great source of potential impeachment evidence against witnesses being called by the state.”

Darryl Perlin, senior deputy district attorney in Santa Barbara, Calif., said a MySpace page recently played a major role in the sentencing of Lara Buys, 22, who pleaded guilty in January to vehicular manslaughter after police said she was driving under the influence of alcohol. Perlin said he submitted information from Buys’ MySpace page, including a photo of her smiling while holding a glass of wine and comments about getting drunk.

“From all these statements in her account, we realized that she continued to be a danger to the community,” Perlin said. “So the case went from being a probation case to a prison case and it was all a result of her MySpace account.”

Buys was sentenced to two years in prison in April for her role in the death of her passenger.

A trip to prison
One defense lawyer said that, in a similar case he handled, the judge relied heavily on MySpace to decide on his client’s sentence.

Steve Balash of Santa Barbara’s Balash & Haaland-Ford said that Jessica Binkerd was sentenced in January to five years and four months in prison after she drove under the influence of alcohol and got into a crash in which her passenger was killed. Balash said he expected Binkerd to get probation, but she received a prison sentence in large part because her MySpace page showed her wearing an outfit with shot glasses and an alcohol advertisement after the accident.

“That’s all the judge talked about,” said Balash, adding the outfit was a part of a Halloween costume and his client had not been drinking at the time. “He never got past that. He said she learned no lesson and showed no remorse.”

MySpace also played a role in a sentencing in Arizona. Matthew Cordova got five years in prison for holding up a University of Arizona student with a gun last June. Jonathan Mosher, a deputy county attorney in Pima County, said a MySpace picture of Cordova holding the weapon and posting comments about it played a role in the sentencing.

“At a sentencing, they are trying to portray him as a guy who had found religion and was very peaceful and hadn’t been in much trouble, so that’s where we were able to use MySpace postings and photo,” Mosher said.