Attorneys frequently remind their clients that statements made on social media sites like Facebook, Twitter and YouTube are frequent sources of evidence in legal disputes. Social media posts are constantly being cited in dissolution of marriage, child support enforcement, criminal, protective order, personal injury, guardianship disputes and other contested matters. More than 50 appellate opinions, included some unpublished opinions, were issued in 2015 alone that included the word “Facebook”. The number of trial court actions that were not appealed but in which Facebook posts were referenced is, undoubtedly, exponentially larger. Recent examples of Indiana cases citing to the use of social media include:
- Boruff v. Boruff, 32 N.E.3d 282 (Ind.App. 2015), a father testified that he was unemployed from June of 2014 to sometime in August, 2014, but his Facebook page indicating that he obtained a job at Taco Bell sometime in June 2014 was introduced to counter that testimony.
- In Schulz v. Spoor, 939 N.E.2d 125 (Ind.App. 2010), a Facebook message sent by Schulz to Spoor’s brother was introduced as evidence of impermissible contact supporting Spoor’s request for a protective order.
- In Matthews v. State, 31 N.E.3d 1045 (Ind.App. 2015), a Facebook post identifying a suspect by his nickname was used to connect him to the crime. There was evidence that somebody called “JayJay” was involved in a murder. A Facebook post of one of the defendant’s relatives identified him by the nickname “JayJay”.
- In re Adoption of H.J.S, 31 N.E.3d 550 (Ind.App. 2015) involved a dispute about whether a maternal grandmother would be allowed to have visitation with her grandchild. A Facebook post made by the child’s mother showed a person who had been convicted of drug offenses sleeping on a couch next to the Child at maternal grandmother’s home. The post was introduced into evidence in support of denying maternal grandmother visitation.
Even those presumably well-trained in the potential consequences of the use of social media have found themselves defending an unwise post. In re Bennington, 24 N.E.3d 958 (Ind. 2015) was an Indiana Supreme Court opinion affirming disciplinary action taken against a Judge in the Muncie City Court. Among the various incidents cited to show Ms. Bennington’s violations of her ethical duties, the Court noted that she posted a comment in response to a Facebook post made by her ex-husband that included a photo of him and his girlfriend: “Must be nice to take such an expensive trip but not pay your bills. Just sayin‘.” She deleted the message within an hour of posting it, but it still was cited in the disciplinary process against her, which resulted in her permanent ban from judicial service.
Not only does an attorney need to consider the social media presence of his client, of opposing parties, and of key witnesses, but a very recent Indiana case suggests that an attorney preparing for trial would be well served to review the Facebook profiles of prospective jurors. On January 20, 2016, the Indiana Supreme Court entered a per curiam order affirming the appellate court decision in Slaybaugh v. State, 2015 WL 5612205, *1 (Ind.Ct.App. 2015). See Slaybaugh v. State, 79S02-1601-CR-28. Slaybaugh was convicted of rape following a jury trial. Following the trial, Slaybaugh learned that one of the jurors was Facebook friends with a relative of the victim. The juror had previously indicated during voir dire that she did not know the victim or her family. The Court of Appeals ordered that the juror be deposed, and during that deposition the juror explained that she was “friends” with many people on Facebook whom were actually just networking contacts. She reiterated that she did not know the victim’s family, despite the Facebook relationship. Both the Court of Appeals and the Supreme Court decided affirmed the trial court’s decision to deny Slaybaugh’s request for a mistrial.
Regardless of the outcomes of these cases, the point for litigants and their attorneys is clear. Failure to review and control your social media presence can result in unwelcome hardships for your case. A clear warning about the use of social media at the outset of representation is advisable. Further, while an attorney cannot undue what has already been done, an attorney can prevent unwelcome surprises by inquiring about prior social media use before any contested matter is heard by the Court. Such review should include not just potential admissions by interested parties, but an analysis of connections between parties, witnesses – and even the triers of fact.