Castillo and Phaknikone: Let the Social Network Evidence Begin
Say you commit a crime. Let’s say the crime involves illegal possession of a firearm. Say that in the past you have posted information on Facebook or MySpace or Twitter or Flicker or YouTube or any other social network or Internet site. Say your posts included a photo on MySpace of you wearing a ski mask; holding a semi-automatic AR-15 rifle; making, umm, expletives; threatening your ex-wife; and, to say it as a court would say it, “displaying” your middle finger.
Say your ex-mother-in-law tells the police about your MySpace photo, and you get busted and prosecuted for federal firearms offenses. Can the MySpace photos and information, including you and your assault rifle and finger and threats, be admitted as evidence in the case against you?
Yes, says the United States Court of Appeals for the Eleventh Circuit last week in one of the first appellate opinions on the admissibility of evidence from social networks. United States v. Castillo.
Don’t worry about challenging the authenticity of the photo. That was such a long shot in Castillo that authenticity was not even raised on appeal.
How about arguing that the likelihood that the inflammatory and prejudicial impact of the photo outweighs its probative value? And that the photo is not even relevant because the AR-15 in the photo is not the firearm that you are charged with possessing illegally? The Castillo court held that the trial court was justified in allowing the jury to consider the photo with an instruction to the jury to ignore the finger and threats. The court ruled that possession of any "assault rifle" – even a gun other than the gun involved -- was relevant to the crime charged.
Or take a different case. Say you rob a bunch of banks, and at your criminal trial your MySpace profile page and account information and photographs from your MySpace are offered as evidence. One of the photos shows you holding a handgun. You get caught and prosecuted for bank robbery and weapons charges, and the prosecution offers the MySpace information as evidence. Under these circumstances, in a case that the U.S. Supreme Court declined to review yesterday, the trial court admitted the MySpace information as evidence. Though the Eleventh Circuit held that the MySpace evidence was inadmissible character evidence, the conviction was confirmed because of other overwhelming evidence. U.S. v. Phaknikone.
The messages of Castillo and Phaknikone are both clear and apparently contrary to what most users of social networks believe: you should assume that anything you post on a social network site will be discovered and admitted in any litigation, civil or criminal, in which you become involved.