1

The Issue

Social media is increasingly being used in both civil and criminal trials. A party's own statements are not hearsay, so as long as they are relevant (not a difficult standard), they are generally admissible. Before we were posting our every thought, feeling, and feud online for everyone to see, it wasn't easy to give tangible proof of those out of court statements. Ideally, there was a letter or recorded voice message or some neutral third party heard the statement and could testify about it. If not, then it was simply one party's word against the other. However, with the advent of social media, people post all kinds of things online and our standards for what we put in public and what we keep private seem to be dropping radically.

2

Example #1 (Facebook)

About three years ago, I had a client that had gotten a FAPA order against his girlfriend for some well-documented physical abuse. The girlfriend then turned around and got a FAPA order against him claiming that he had abused her as well. However, she had just posted on facebook about how she was going make him sorry once he'd seen what she is capable of. It was pretty easy to get her restraining order dismissed after that (after seeing the post, her attorney agreed to dismiss it prior to the hearing).

3

Example #2 (Facebook Again)

About a year ago, I had a dissolution of marriage case where the parties were close to settling and then the husband fell off the radar, stopped communicating with his attorney, and started making threats about the wife and (possibly) the children. Worse, he was putting dangerous sounding posts on facebook. Worse still, the wife had a restraining order and some of his posts actually seemed like a violation of the no-contact provisions of this order. Ultimately, a judge granted an immediate danger (temporary custody) order based on the strange and threatening posts. The husband was also arrested for violation of the restraining order.

4

Example #3: Text Messages

Text messages are possibly worse than facebook. Here, you are communicating directly with the other party and there's no option to take the post down before they see it if you come to your senses. I had a restraining order case once where we did a good job of impeaching the other party's testimony to show that there had been no abuse, that the complaining party kept initiating the contact, that there wasn't really a concern about future abuse, and that the complaining party had sought restraining orders in the past when they broke up and then dismissed them when she wanted to reconcile. Everything should have been going well, but my client had written a number of text messages that were presented as evidence. They were written in moments of anger and did not represent this client well at all, but they sounded bad and painted a picture for the judge that looked abusive. If it weren't for those texts, I think that the restraining order would have been dismissed.

5

Example #4: Voice Messages

In an elder abuse restraining order case, opposing counsel played a voice message where my client sounded angry and seemed to be calling the other party a name. This might not sound like much, but elder abuse restraining orders cover a wide variety of things (including name-calling). Worse still was that the judge was listening to the sound of my client's voice. In court, my client was composed and acted reasonably and professionally. However, the judge's impression had to have been colored at least a little bit by the voice message.

6

Potentially Huge Impacts

On the criminal side of things, the impact could be so large as an online confession to a crime. Be careful what you post on sites such as Avvo as well. They are public and the person reading your post could just as easily be your prosecutor. Attorney-client privilege does NOT apply here! On the civil end of things, you could be providing all the elements for the other party's case, helping them to show damages, admitting knowledge/intent, or torpedoing your own potential defenses. There are a number of concerns particular to family law. When deciding custody, Oregon judges look to which parent is more likely to facilitate a relationship between the child(ren) and the other. Thoughtless comments can speak volumes here. Also, in divorce, custody, parenting time, and enforcement of parenting time cases, comments can also be used to show a lack of safety or stability (or, that such concerns are unfounded).

7

So, What Should you Do?

There are a number of things you can do: 1. Set privacy filters. You personal social media sites should be private. I'm amazed when as a stranger, I can log onto an opposing party's page and print out their posts and comments that were probably intended for family and friends. 2. Self-edit. Keep in mind that your posts and comments can be read by others. Remember that texts and voice messages can be saved and that old adage, "Don't do something you wouldn't want your grandmother to know about." 3. Use it to your advantage. If you plan on using the other party's statements, remember that they can do the same to you. Anything you write or say in a recorded message, should be polite, professional, and reasonable and you should understand that a judge (or jury) could be the one ultimately reading it.

8

What to Do (Continued)

4. Keep a record. Many phones allow you to print out a text message exactly as it appears. For evidence, you will want to show who it was sent by and when. Don't rely on saved messages which can be accidentally deleted. Also, the "Print Screen" button on your computer is a useful tool that you should learn how to use (it's probably on the upper right of the keyboard and says, "Prt Sc Sys Req").