BE CAREFUL WHAT YOU POST

Facebook, Twitter, blogs and other social media channels have become an evidentiary gold mine for impeaching witnesses and undermining an opponent’s litigation position. While most people know it’s a good idea not to post about drinking if you are in court for a DUI, using social media can cause problems during cases of long-term disability as well. A simple post about working in your garden when you claim you are unable to sit, bend, squat or kneel for long periods of time could mean the difference between having your claim paid and being denied disability coverage.

It’s not just the defendant that has to be careful on social media, but also any witnesses or even the lawyers themselves. Information obtained from cyberspace has regularly been used to impeach parties, witnesses, and even lawyers. Lawyers use information found on social media to undermine a witness’s testimony and/or integrity.

For lawyers, any in-court statements made that are inconsistent with information found on their social media sites are potential grounds for impeachment. The worst case scenario is that they are found in violation of their ethical duty of candor. Any ethical rules and obligations apply to both online and offline.

If you’re wishing to use social media as evidence, it’s not as simple as printing a screenshot of the page and slapping it with an evidence tag. There’s a procedure that must be followed to maintain integrity and make it admissible in court. When attempting to get information from the social media pages of parties and witnesses, there are ethical restrictions regarding the way you access private information and present it in court.

Let’s say you find a picture of the defendant’s brother, a key witness in a drug smuggling case, smoking weed on his Facebook page. With the invention of Photoshop, how can you prove the photo hasn’t been manipulated? Expert witnesses become crucial in this case.

Yet, in the case of Griffin v. State of Maryland (2010), even when lawyers see the need for expert testimony, they still use a totality-of-the-circumstances approach to determine what level of authentication is needed. In this case, a police officer found a MySpace post on defendant’s girlfriend’s page saying “JUST REMEMBER SNITCHES GET STITCHES”. In this case, the officer’s testimony along with the content/context of the message, photographs, birthdate on the page, and the fact that the post referred to the defendant by his nickname was enough to authenticate the evidence and didn’t require expert testimony.

While this example represents an extreme and obvious no-no of what not to post on social media, the lines are not always this clear. If you are involved in a long-term disability case, you have to be extremely careful about what you and your friends post on social media. What seems like a harmless picture or comment about your activities could be used against you.

If you’ve used the words “never” or “always” in your claim and they see a post about you doing “x, y, or z” even just one time, they could and most likely will use that as evidence against you. I always advise my clients to be very careful what they post because what is on social media can and will be used against you.

Sometimes it’s not what you post, but someone else. You can’t always control what other people post and one joke that is taken seriously can derail your whole case.