Is evidence gathered from social media the “future of litigation?”

Social media movements are again being discussed as possible pivotal evidence in a high-profile murder case, this time with a defense lawyer claiming Twitter updates prove his client’s self-defense claim.

18-year-old Shanterrica Madden stands accused of the murder of her 21-year-old college roommate, Tina Stewart. Madden’s lawyer Joe Brandon, Jr., believes that social media activity detailing the ongoing conflict will prove that it’s “undisputed” that the victim “started the fight and it’s just an unfortunate series of events that follows.” Said Brandon:

“It’s one of the first times as a defense lawyer that I have seen it come into play,” said attorney Joe Brandon. “I’m keen on it. This supports fully our defense of self-defense. It’s critical.”

Benjamin Holden is the director of the Reynolds National Center for Courts and Media as well as a professor of media law at the University of Nevada, Reno. Holden said the introduction of social media evidence is a massive complication as courts work to catch up to technology:

“It’s extremely complicating. It broadens the arena of evidentiary opportunity, evidentiary pieces, to an almost limitless scope… The legal team with the best geek squad wins — that may be the future of litigation.”

While a fortuitous status update or location-aware app could certainly work in an individual’s favor, evidence gleaned from sites like Facebook is not always useful in building a defense. Local District Attorney General Kim Helper admitted the prosecution often “scours” social networking sites to gather evidence against a defendant:

“Definitely in terms of evidentiary issues, we’re seeing a lot of it, and a lot of it is beneficial to the state,” Helper said. “I tell juveniles all the time, ‘If you don’t want someone to read it, don’t put it out there.’ The same thing goes across the board whether you’re a prosecutor, juror, witness, defendant.”

The issue does indeed span all aspects of a court’s reach. The integrity of a jury or juror has been called into question on more than one occasion, and the New York State Bar even published an opinion last year on the ethics of gathering evidence via social media. (It was basically decided that entirely public evidence should be admissible, but “friending” an individual to gain access to their semi-private information should not.) A New York teen was saved from jail when a status update proved his innocence. (The status? “Where’s my pancakes?”) Matrimonial lawyers have even gone so far as to call Facebook and its ilk an “evidentiary goldmine” in gathering evidence for divorce cases, and it has been claimed more than once that 20% of divorces now mention Facebook in filings.

The lasting implications for this are fascinating and scary- kind of like watching a big, real-life episode of Law and Order SVU. It could be the wind up that innocence is more often proven early rather than later in a case, with services like Foursquare providing alibis, or it could be that the future is an Orwellian nightmare in which not one iota of your life is private if you happen to rely on digital means of communication. Do you think the introduction of social media evidence stands to do more harm or good to the criminal justice system from an individual’s standpoint?

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