Guidelines Issued On Jurors And Social Media For New York Courts
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Prosecutors, social media evidence, and ethics

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Prosecutors, social media evidence, and ethics

On many occasions I’ve written about the importance of understanding your ethical obligations when mining social media for evidence. This duty is particularly important when it comes to prosecutors. After all, their actions can affect the constitutional rights of those accused of crimes and the interests of those against whom crimes have alleged to have been committed.

This is an issue that is becoming increasingly relevant now that social media is commonplace. When social media first emerged on the scene, lawyers weren’t sure what to make of it. But astute litigators were among the first to comprehend the potential impact of evidence gleaned from social media upon the litigation process. And, because prosecutors spend their days in the courtroom, some of the first instances of allegations of impropriety relating to the mining of social media for evidence involved their actions..

I wrote about one such incident back in June 2013. In that case, former Cuyahoga County, Ohio, Prosecutor Aaron Brockler had admitted to assuming the alias of a woman on Facebook and then contacting alibi witnesses of an accused killer whom he was prosecuting. He pretended to be a fictitious former girlfriend of the accused and then engaged the witnesses in a Facebook chat, during which he encouraged the witnesses to change their testimony. When his actions were discovered, he was terminated on the grounds that his actions were unethical.

At the time, Brockler maintained that his deceptive actions were perfectly acceptable. He was seemingly oblivious to his ethical obligations and remained resolute in the assertion that his actions were not problematic, telling the Sun News: “Law enforcement, including prosecutors, have long engaged in the practice of using a ruse to obtain the truth … I think the public is better off for what I did.”

Unfortunately for Brockler, in January of this year, the Board of Professional Conduct of the Supreme Court of Ohio begged to differ. (See: Slip Opinion No. 2016-Ohio-657).

After reviewing Brockler’s actions, the Board concluded that his actions were clearly unethical: “We…find that Brockler’s use of a deceptive investigative technique to contact Dunn’s alibi
witnesses violated Prof.Cond.R. 8.4(c) and (d)…We also find that a one-year suspension, fully stayed on the conditions recommended by the board, is the appropriate sanction for Brockler’s
misconduct.”

The dissenting judge went even further, and I tend to agree with his conclusion that a stayed suspension was an inadequate penalty given Brockler’s actions and his failure to uphold the duties he owed to the public as a prosecutor: “Brockler actively hindered the pursuit of justice in a criminal proceeding on multiple occasions, by lying to alibi witnesses in an effort to make them change their statements. He made every effort to hide his deceptive activities until they were uncovered, and then he refused to admit that his actions were wrong…Failing to require Brockler to serve even a single day of his suspension does little to establish that this court will ensure the integrity of prosecutors and the ethical administration of justice.”

Whether you agree with the penalty or not, the lesson to be learned is clear: attorneys, whether prosecutors or otherwise, should tread lightly when mining social media for evidence. If you intend to seek data found online for use in litigation, it’s important to understand both your ethical obligations and the ins and outs of the social media platforms that you intend to mine for evidence. Otherwise, you might find yourself in the same boat as Brickier—and that’s not a place you want to be.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.