In one of my recent cases a young (pusher-addict) defendant was charged with distribution of heroin to his friend who overdosed and died. The charge a first degree strict liability drug induced death offense carried a sentence of 10 to 20 years with an 85% period of parole ineligibility. In that case the Somerset County Prosecutor’s Office was quick to copy a photograph from the defendant’s public Facebook page, which they quickly disseminated to all the major New Jersey newspapers in the State along with a press release on the day of his arrest. The photograph was a picture of the defendant taken two years before with his shirt off and laughing. The picture was unfair prejudicial and extremely damaging, and the prosecutor’s office knew exactly what they were doing by posting this photo. The photograph of the defendant had absolutely no connection to the case. The purpose for releasing the photograph was to prejudice the defendant and taint the jury pool with the subtle and unfair essage that the defendant was living the high-life and laughing about it, while selling drugs. Nothing was further from the truth.
In recent years law enforcement has used social media sites to obtain inculpatory evidence against defendant using these sites. However, not as well known, or used by many defense attorneys is the use of these sites to benefit the defendant. For the defense social media sites can be a treasure trove of exculpatory evidence, impeachment material, and other helpful information for the defense.
All of us have heard incidences reported in the media in which rogue cops have posted information on their social media sites as "rogue cop", or "I pick up garbage for a living". These statements of course are impeachment material under Giglio.
In one of my recent cases which resulted in my obtaining a dismissal of all criminal charges against the defendant my client was able to obtain some very interesting information regarding the officers bias. In that case a municipal patrolman was called to a nightclub at the bequest of the manager when the defendant complained about the bar bill and the poor quality of the drinks. When the patrolman arrived he immediately took the side of the manager of establishment and arrested the defendant when she questioned the patrolman obvious bias. The defendant did absolutely nothing wrong and it was clearly a bogus arrest. Prior to trial the client, a person with some expertise in computers was able to ascertain and printout some very damaging information regarding the police officer and his connection to the nightclub. Among other things she obtained proof and printouts that the manager and owner of the nightclub were friends of the officer on Facebook, that the office had one of his personal parties hosted by the nightclub, and that he had listed the nightclub as one of his favorite places. Needless to say this information would have been very damaging to the officer as to credibility and motive for the arrest if the matter had gone to trial, but because of the officers fourth failure to appear for trial (for obvious reasons that it was a bogus arrest), the matter was favorably resolved in the defendant’s favor with no criminal record. The officer if honest should have recused himself from the call or at a minimum take undue caution to be fair based on his personal friendship with the manager and owners of the nightclub.
When relevant defense counsel should not hesitate to use its subpoena power to obtain social media information for all of the prosecution’s witnesses for information that exculpates the defendant or can lead to impeachment evidence for the defense. This information is clearly discoverable under the seminal federal cases Brady and Giglio. Further, during the pendency of the case defense counsel should monitor all public available social website information to determine whether major charges to the site have occurred which might tend to show that the person is attempting to hide or delete information because of the case.
Lastly, defense counsel should not hesitate to mine social media sites for any public information regarding potential jurors in any given case and any possible biases or prejudices that they might have but fail to disclose to the defense.
Although most jurisdictions have not addressed the issue, defense counsel should be aware of the ethical considerations in not obtaining any personal information from any social media site through misrepresentation.
Law Office of Vincent J. Sanzone, Jr.
Elizabeth, New Jersey, New Jersey Criminal Defense Attorney, How to win your criminal case in New Jersey
Dated: August 8, 2011