Monthly Archive for November, 2011Page 2 of 3

Facebook Postings May Be Used Against You in a Divorce

Social networking websites have often found their place in court, especially during voir dire or criminal proceedings.  Yet again, social networking sites are being used, but now in a different context.

In a Connecticut divorce proceeding, a judge is requiring that a couple submit their social networking passwords to the court.  Attorneys of both parties are to exchange passwords for their clients’ Facebook and dating websites.  Such evidence is being used to help evaluate how each party feels about their children, and their ability to take care of them.  Essentially, these passwords are being used to help resolve a custody battle.

The court issued an injunction to deter both parties from deleting any material on the websites, and ordered the attorneys to exchange passwords.  It has also been ordered that neither party will go on the websites of the other and post any messages, status updates, etc.

There are mixed reactions to the judge’s orders.  People are objecting because they feel this is an invasive discovery tactic which invades the privacy of the other party.  People log onto their social networking sites almost every day, sharing thoughts, exchanging communication, and revealing information about them.  Is it really fair to have all of these expressions used in court?

Divorce proceedings in particular are sensitive because they deal with the dissolution of a valued institution, as well as potential custody issues regarding children.  Can a judge really evaluate parents’ true personas and abilities as caretakers from information on these sites?  Many feel that these sites only reveal everyday expressions that are not relevant to an individual’s caretaking abilities.  Moreover, such information is an invasion of privacy and may be used unfairly to determine if a person is fit to take care of his or her child.

Of course there is another side to this argument.  This tactic does compromise Facebook’s policy of not exchanging passwords.  It also invades someone’s privacy.  However, when an individual enters into legal proceedings, it is expected that a certain amount of private information is revealed.  Unfortunately, this is a natural consequence of litigation; there are times when a door is opened, and the other side learns of personal information.  Therefore, many feel that there is nothing wrong with the judge’s order.  Common sentiments are that this information will increase our legal system’s ability to make the “proper” decision.

A potential solution that people have proposed is to label any printed documents from these sites as “privileged.”  Therefore, this information will fall under the attorney-client privilege and will not be submitted into evidence.  People, however, need to better educate themselves on this privilege.

A client cannot just “put” information into the protection of privilege because it may be pertinent evidence.  The attorney-client privilege ensures that communication between attorneys and clients, be it written or oral, will be confidential.  Further the work product doctrine falls into this privilege and ensures that an attorney’s mental impressions and/or work put into the case will remain confidential.  The other side may never obtain the attorney’s mental impressions.

However if a significant showing of necessity is pleaded in court, then a party may obtain work product such as interviews, reports, notes documenting meetings, etc.  Overall, the court does establish guidelines on what information can be privileged.  Clients cannot just put any information they want into the “privilege bubble.”

All in all, as technology consumes our lives, it also finds its way into court.  Lawyers already use sites such as Facebook to learn about jurors and/or defendants in criminal proceedings.  It is only natural that such a tactic be used in other legal proceedings as well, such as ones involving divorce.

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Criminal Court Trials Now Exceed The Number Of Civil Trials, Hell Freezes Over

It’s definite now.  I think we finally have definitive proof that when 2012 comes rolling in, the world will end.

Seriously though, I thought I would never see the day where the amount of criminal cases going to trial would actually exceed the number of civil cases getting their day in court.  But apparently, according to the Wall Street Journal, that is what’s exactly happening in courts all over America today.  Who knew one of the Four Horsemen would come in the form of judicial equilibrium?

The report cites a number of reasons for the uptick in criminal court trials.  Some of them include an increase in prosecution of drug and immigration offenses, along with a general growth of new criminal laws carrying new penalties on both the state and federal level.  But interestingly enough, the article also cites the large number of judgeship vacancies on the federal bench as one of the reasons why less civil cases are getting their day in court.

This is definitely a surprise to me considering that, in my opinion anyway, being a judge is one of the cushiest jobs in the world.  The salary can easily be in the six figures, the hours of work are basically whenever the judge feels like coming in, and let’s not forget about the respect and prestige that comes with being a federal judge.  But it seems like all these factors isn’t enough to keep the bench stocked with judges since about 67 of the 677 district court judge positions remain empty.  Meanwhile, the amount of federal criminal cases has gone up over 70 percent since the last decade.  All of this ends up causing civil cases to be put on the backburner until the criminal docket across the country are resolved first.

The strange thing about the coverage of this new development is the negative spin it’s getting from the media.  The overriding consensus from all the reporting I’ve seen on the matter so far has been that it’s hurting both big business and the little men and women of the world from getting the justice they deserve.

Now while I agree that all citizens should have the right to have their issues resolve by the courts, for years criminal defendants have been getting the shaft when it came to being able to exercise their right to a jury trial.  I mean, there are entire Wikipedia pages dedicated to the problem.

Plea bargaining is the worst offender of them all.  In the short term, criminal defendants get a seemingly good deal.  Generally, in exchange for pleading guilty a defendant will be given no jail time, time-served, a reduced fine, and/or in some cases no prosecution at all (usually that last one comes in the form of a The Wire-esque quid pro quo).

But the problem with this system is that unless you’re rich or have some other equally rare blessing in life, copping a guilty plea and getting a conviction on your record is something that follows you for the rest of your life.  A conviction on your record is kind of like have an annoying sidekick always following you around and screwing up your job interview or licking his shoes clean while you’re at your boss’s wedding.  It’s not something that you want to have, and though you may be able to tolerate its wacky antics and schedule your life around it’s zaniness, it’s not something that you should have to do.

So I say, good for you criminal justice system.  You finally achieved a little more parity in how you decide to send our country’s citizens to the slammer.

But what do you guys out there think about all of this?  Do you think it’s fair that civil cases are being delayed in order to hear criminal trials first?

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Police Violence Makes A Comeback In The Occupy Protest, ’90s Pleased To Be Remembered

So . . . that Occupy Wall Street Protest has been progressing nicely, huh?  I’m sure their message of . . . getting rid of injustice and corruption and greed, and, uh, stuff has been coming across well.  Alright, so maybe that part isn’t all that clear, but hey, at least they can turn a few lucky cops in Berkeley into YouTube stars.

Just kidding, I know the protest’s message is a clear one: get rid of corporate influence over the government, start prosecuting the corporate irresponsibility that helped lead us into this global economic crisis, and shorten the wealth gap between the rich and the remaining 99 percent of America.  The problem of course is that like many civil disobedience protest, the message starts to get muddled when it turns into a venue for hipsters to launch another Woodstock.

But I digress.  Back to the point in my intro paragraph, unprovoked and uncalled-for police brutality is the latest icing on the cake to plague protesters.  Other than being a “cheery” throwback to the ‘90s, this latest incident from the protests in Berkeley has got the nation talking about police violence again.  A recent video on YouTube shows student protesters making a stand on the University of California Berkeley campus against campus police (in case you missed them, they’re the ones donning the riot gear and nightsticks).  The protest is going along without a single punch or bottle thrown when all of the sudden the cops turn violent and start beating on the protesters.  And while I think it may be safe to assume that the protester were probably throwing tons of profanity laden criticism at the boys in blue, beating on someone because of mere words is never a justification.  This isn’t the Old West, we have laws.

However, the best part of the video is that it was taken in front of the campus’s law school building BY LAW STUDENTS.  I would think that if you were a cop and planning to crack some heads, the worst place to do it would be in front of a freaking law school full of overzealous law students.

So far though, there haven’t been any cries of lawsuit, but the real shocker is that the UC Berkeley administration seemed to have been aware ahead of time that such police violence would have gone down.  An email was sent out by administrators beforehand that campus police were going to be checking student IDs and possibly forcibly removing protestors from the area.  The email claims the administration has no control over the actions of campus police, so I guess the point of the email was more of a heads up, you might be getting your head smash down.

Now, while I’m not a fan of the mucky spectacle the Occupy Protest has become, no cop has a right to use violence when there is no provocation.  It’s not only wrong on both a moral and ethical level, it’s also illegal.  With that said, you would probably think that this would be a slam dunk lawsuit for any up and coming Atticus Finch to take on.  Well, you’d be surprised.

You see, in most jurisdictions, the laws detailing when police can and cannot use violent are written very broadly, almost vaguely some would say.  They generally state something along the line of police are entitled to use force whenever it is necessary to protect themselves, fellow officers, or the public from imminent harm or danger.  The definitions of what is consider “imminent” and what is “danger” are usually equally broad.  The reason being from a policy standpoint is that the government doesn’t want the police, who are tasked to protect the public, from having to second guess themselves too much in times of crisis.  I guess, this philosophy can be described as the shoot or, in UC Berkeley’s case, beat first and sort it out later rule of policing.

The bigger problem with this type of policy-making of course is that it generally gives a lot of leeway to cops to do whatever they want to control a situation that has the potential of escalating into something worst, like a riot á la 1992 Los Angeles, for instance.  Of course, that one happened, initially at least, because of outrage against an overly lenient verdict for the brutalizing cops, but you get the point.  In any case, the reality of the situation is that despite what some would describe as obvious unprovoked police violence in that YouTube video, many courts and defense attorneys could easily construe as an increasingly loud and unpredictable crowd of protestors ready to tear the school apart.

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Are More Sentencing Restrictions for Juveniles Coming?

Less than a year and a half ago, the Supreme Court ruled that juveniles (people under 18) cannot be sentenced to life in prison without parole when convicted of any crime other than murder, holding that all juvenile convicts must at least be given a reasonable chance to be paroled, even if this does not actually result in parole.

Now, the Supreme Court is going to hear another case, this time asking whether or not minors who commit homicide can be sentenced to life without parole.

This is another in a long string of cases where the Supreme Court has placed new restrictions on sentencing, particularly of juvenile criminals. The basic idea is that young people are probably most likely to be rehabilitated, so it doesn’t make sense to deny them an opportunity to do so.

In my last post on this subject, I mentioned that I don’t want to see life without parole completely eliminated as a sentencing option, but was somewhat on the fence about whether it should be available for juveniles who commit murder. Over the last few months, my views have changed: I think that life without parole should not be available for criminal defendants who were juveniles when they committed their crimes, even if the crime is murder.

Again, I should emphasize that this does not guarantee that a juvenile offender sentenced to life (with a chance at parole) will be guaranteed release. Parole boards would, and should, be free to exercise their discretion to deny parole, if they believe that the offender represents a continuing threat to society. It simply means that juvenile offenders must, eventually, be given an opportunity to show that they’ve been rehabilitated. I don’t know what the minimum time before this opportunity arises should be, but it should be a point in the future that the offender is reasonably likely to live to see, such as 15 or 20 years.

Of course, this means that there is a real chance that some people who commit murders as juveniles will eventually be released. Obviously, the decision to grant parole should not be made lightly, and it should only be granted when the defendant can show that they’ve been rehabilitated. If such a rule were adopted, perhaps it would spur our criminal justice system to stop paying lip service to the idea of rehabilitation, and actually change the focus of the system to genuine rehabilitation of criminals.

After all, if all juvenile criminals are given a shot at eventual release, we’d want to make sure that they’re unlikely to re-offend after release. While it’s true that some criminals, even juveniles, are beyond rehabilitation, and need to be locked away forever, it’s also true that we could do a much better job of rehabilitating criminals than we currently do.

For example, Norway recently took a lot of flack when the American public got a view of their “posh” prisons that look more like college dorms than prison cells. Many people were upset that the worst criminals in the country are given very comfortable and seemingly-luxurious accommodations.

However, Norway has a recidivism (re-offending) rate that’s far lower than that in the United States.

It’s also worth noting that Norway has completely done away with the sentence of life without parole, while still having a procedure for ensuring that prisoners who remain dangerous are not released.

Such a system, which largely disregards punishment as one of the objectives of criminal justice, seems counter-intuitive. However, if the Supreme Court rules that life without parole cannot be applied to any juvenile offender, we will have to start seriously considering what should be done with this fact.

Do we just continue to use the parole system we currently have, and hope for the best, or do we take it as an opportunity to create a criminal justice system that makes released offenders as unlikely to re-offend as possible?

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You Can Be Prosecuted for a Fake Facebook Profile

I’ve spilled a lot of virtual ink about criminal charges arising from bad behavior on the Internet. Much of the time, these cases have involved conduct that should be criminalized, such as making threats or committing fraud. Essentially, these are things that have always been illegal in the “real” world, transferred onto the Internet, where they’re still illegal.

I’ve also written about crimes that can only be committed online, some of which clearly should be criminalized, such as breaking into computer systems to steal sensitive information. On the other hand, there have been several high-profile cases of criminal law being applied to online conduct in a way that seems to make little sense. For example, there have been cases of people being prosecuted for “unauthorized access” to a computer system for logging into their work computer after quitting or being fired, or setting up fake MySpace pages.

Last week brought another case of a person being prosecuted for setting up a fake online presence.

A woman set up a fake Facebook profile about her ex-boyfriend, and posted inflammatory statements under his name. She is now being prosecuted for identity theft.

Now, I’m not condoning this woman’s conduct. At the very least, I think she should be subject to civil liability for defamation and invasion of privacy. In this case, I’m pretty much on the fence about whether or not this type of conduct, deplorable as it may be, should expose a person to criminal charges.

On one hand, identity theft is a serious problem, and can ruin people’s lives. However, laws against identity theft are primarily meant to guard against the financial harm caused by fraudulent use of another’s identity. While it’s true that any identity theft can also damage its victim’s reputation, that doesn’t seem to be the main motivation for laws banning it. A couple states, including California and New York, do have laws specifically outlawing online impersonation. New Jersey, where this took place, does not.

So, could the state’s existing law against identity theft be stretched to cover the conduct at issue in this case? According to at least one judge, it can.

If New Jersey had a law specifically prohibiting online impersonation, this prosecution would probably be uncontroversial. But, as a matter of due process, I have a problem with prosecutors stretching criminal statutes to be applied to conduct that the actor may not have reasonably expected to be criminal in nature.

This is because due process of law requires that, among other things, that people have notice of what conduct is illegal. Obviously, if there were “secret” laws, it wouldn’t be fair to punish someone for breaking them, when they had no way of knowing that they existed in the first place.

The best way to mitigate the problem of extremely bad conduct which we haven’t thought to criminalize is, unfortunately, to simply learn from our mistakes. In this case, the proper response would be to lobby the state legislature to change the law, not to stretch existing law to accommodate it.

This is unfortunate because this approach generally requires that the first person to commit a bad act that we decide needs to be criminalized would have to go free, since criminal laws cannot be applied retroactively.

But, as I’ve said before, the price we pay for living in a free society with a fair criminal justice system is that some guilty people will go free.

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