Sunday, February 23, 2014

Use of text messages as evidence in Massachusetts

File:Texting.jpg     A few years ago I had a conversation with a prosecutor about proving a case with text messages. I represented a victim of a crime in which the perpetrator had confirmed that he had punched my client in a text message. The prosecutor told me that it was extremely difficult to use a text message as evidence. He said that he would have to subpoena the company that provides the cell phone service to obtain the text message. Then the cell phone company would have to send a witness who can testify that the records show that the text message came from the perpetrator's phone. Then, after that, they still have to prove that the perpetrator actually sent the message and not someone else who used the phone.

     A recent case from the Massachusetts Appeals Court establishes that in many cases, it is much easier to introduce text messages than this prosecutor thought. In the case of Commonwealth v. Toney, Mass.App.Ct. (No. 13-P-275, Feb. 5, 2014) the Court held that a text message may be introduced based on the testimony of the recipient of the message and does not require a subpoena to the cell phone company. However, this opinion is an unpublished opinion of the Court and can't be used as precedent. Nevertheless, the logic used by the Court should guide judges and lawyers in the future.

     The introduction of a text message as evidence can be broken down into two elements: foundation and contents. The Toney case only dealt with the foundation element as the prosecutor never tried to introduce the text message itself. The victim in this case testified that "since we were friends, her phone number was in my phone," and that "I know that when I got a text message with the name 'Chantelle Toney,' . . . it was from Chantelle Toney." The court held that this testimony was sufficient to allow the jury to determine if the text message was sent by Chantelle Toney.

     This case treats text messages the same way that telephone calls are treated. A telephone call can be introduced into evidence if the person testifies to the circumstances of the telephone and the totality of the circumstances show the identity of the caller. Essentially, this is what the Court did in the Toney case. Based on the totality of the circumstances, the Judge held that the witness could identify the person that she believed sent the text.

     While the Toney case did not seek to introduce the contents of the text message, this is usually very easy to do. I usually take the cellphone, display the text message, place it on a copy machine, and copy the text. I then make sure the actual cell phone is available in Court and offer the copied text as evidence.

     Introduction of evidence can be a complicated concept. This is particularly true for new technology like text messages. An experienced trial attorney should be prepared to apply the rules of evidence to this new technology.

Sunday, February 16, 2014

Judges have to be careful about social media.

I have written about the dangers of social media and people who are in court in my blog.  Just as people who litigate in court must be careful about the use of social media, so do judges and lawyers.  The American Bar Association cautioned judges about this problem and now a Judge in Florida has been disqualified from a divorce case because of social media.

In the Florida case, a judge presiding over a divorce sent a "friend request" to the wife in the divorce before rendering a judgment.  This put the wife in a very difficult position.  If she rejected the request would the Judge retaliate in the Judgment?  If she accepted the request would that consitute improper ex-parte communications with the judge?  Could the husband attack the judgment because of the new relationship?

Judges are suppose to be impartial so that they can make a decision free of improper influences.  Connecting with someone in a non-professional manner on social media should be grounds for removing the judge from a case.  Judges should not friend lawyers or litigants unless they have a prior relationship with that person such that there is already a conflict of interest preventing the judge from hearing the case.  Lawyers must avoid the appearance of impropriety and should not ask Judges to friend them.  If a lawyer does have a social media relationship with a judge, they should reveal this to the other side as soon as possible.

To the extent possible, it is not a bad idea for a litigant to look at the social media identities of the opposing lawyer and the judge assigned to the case.  If some contact is found that raises questions, an experienced lawyer should be consulted to ask about any possible concerns as a result.  

Saturday, February 15, 2014

Arrests made for violating restraining orders by social media contacts

Recently there have been several cases in which people have been arrested for violating restraining orders by contacting the protected person by social media. I have written about this topic in the past on my blog. These cases are the first cases I have found in which someone was arrested for using social media and violating restraining orders.

In December, 2013, a man in Beverly, Massachusetts was arrested because he sent his girlfriend an invitation to join his circle on Google Plus. He claimed that he didn't send the invitation and that he has no idea how it was sent. With Google Plus, people create circles as a way of expanding their social network. When a person is added to a circle, Google may send an invitation to that person. This is the equivalent of “liking” a person on Facebook.

Thaddeus Matthews, a radio show host in Memphis, was arrested after he “liked” a video posted on Facebook by a woman who had a restraining order against him. When a person “likes” a posting on Facebook, the “like” is posted on the Facebook wall of all “friends” and the person who posted the original posting. Although a person may claim to not understand the workings of Facebook, a court is likely to not believe this. The result for Thaddeus Matthews is that he is likely to be convicted of a crime.

Restraining orders require the restrained person to have nothing to do with the protected person. In almost all cases, this means that the restrained person can't follow or spy on the protected person. This prohibition should include cyber stalking. Thaddeus Matthews should not have been looking at postings by his former girlfriend once the restraining order issued. As I recommended in my previous blog post on this topic, once a restraining order issues, the restrained person should “unfriend” the protected person.

Restraining orders can  be difficult to understand and obey.  A person served with a restraining order should consult an experienced attorney who understands domestic abuse orders.  If that person uses social media, they should ask the lawyer about how to use social media and not violate the restraining order.