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Old August 13, 2017, 10:15 AM   #1
OldMarksman
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Before You Submit that Post....

A friendly reminder:

Everyone who posts here or anywhere else on the Internet should understand that such posts are permanent, and they may be subject to discovery in legal proceedings at any time in the future. Should any member ever find himself or herself involved in such proceedings, posts containing comments that could be interpreted unfavorably could prove damaging.

You do not want to post anything where it may be made available to plaintiffs and investigators, that you should more properly tell only to an attorney in confidence in a privileged legal communication.

For those who may not be well versed in the reasons behind this, some additional explanation my be helpful.

First, everyone should understand that if one posts in a public forum on the Internet for anyone in the world with Internet access to read, or when one sends a company email for that matter, one can have no expectation of privacy.

Second, electronic postings can be and have been traced back to the originator, authenticated, and used both to facilitate further investigations and as evidence. One's computer may be seized, or subpoenas may be issued to others. Also, investigators can use search engines as well as or better than anyone else.

There are two kinds of situations in which a statement made on the Internet or put in email or posted on one of the various social networks can come back to haunt the originator.

The first involves posts of the "this happened to me" genre. If an incident that could lead to an investigation and/or additional legal proceedings has occurred, anything said about it on the Internet could either be used as evidence or to lead investigators to other facts or information that could be used as evidence that could prove damaging to the originator. For that reason, it is very important to exercise caution in terms of what one posts.

This can apply to either criminal or civil proceedings or both.

It is important to understand that the risks involved may even apply in cases that have not yet been pursued by law enforcement. A statement such as "I drew my gun and told him to get off my property" may be all that is needed to start or provide additional evidence for an investigation that might otherwise have gone nowhere.

In case it is not understood by some, the fact that the investigation of an incident appears to have been "closed" does not mean that the actor is free of risk. A statement by an officer that one "did the right thing", or even a decision by a prosecutor or grand jury to not pursue charges, is not a guarantee against further action. For one thing, new persons may replace others. More importantly, however, new evidence can be brought to light, and a posting here or anywhere on the Internet may just be the thing to make that happen.

The second risk involves the possible use of a statement posted on the Internet before an incident has occurred.

One way that such messages may be used is to indicate state of mind.

In the event that a person becomes involved in an incident in which the evidence supporting justification is sparse or is contradicted in part by other evidence, or an inconsistency casts doubt upon the credibility of the actor, anything that might be used to indicate that the actor had been predisposed to violence or the threat of violence could prove very damaging indeed.

Statements such as "anyone on my property is fair game", "in my state the law allows me to shoot anyone who...", "if he gets away he might harm someone else", "shoot the loudest one", etc., to cite a few hypothetical examples, can be discovered and used in court years after they were made.

This is not just conjecture. For a real example, consider that in a highly publicized case the defendant, who was a firearms instructor, had used training materials containing words such as “always cheat; always win,” and a statement to the effect that one should treat every one else in a polite manner while simultaneously having a plan to kill them. These statements may serve with a proper effect in an instructional setting, but taken out of context, they can be and have been used with damaging effect in a trial setting.

A second, and perhaps more common, way that pre-existing messages may impact an investigation or trial involves the establishment of a prior relationship between the parties. That evidence could either be used to establish motive or, if an actor claiming self defense has denied that such a relationship existed, to raise questions about the actor's credibility.

There may be those who will consider this, or any other tactics used in a case in which an actor who has used deadly force and who believes his actions to have been justified, to be unfair or perhaps characterize such tactics as those of an "overzealous prosecutor". It is important to keep in mind three things: (1) an investigation and/or a subsequent trial will involve anything relevant that can be gathered after the event and nothing else, and such statements may well be relevant; (2) the fact that the actor considers himself to be an upstanding citizen who is therefore a "good guy" will have little bearing on the case; and very importantly, (3) if the totality of the evidence does indicate that a shooting was not justified under the law, we expect our prosecutors to obtain a conviction.

It is impossible to list everything that could be taken out of context and used against one in a criminal or civil proceeding. We can only urge the use of caution in posting.

Understand that this is not mere conjecture or untested theory, and that it applies to criminal and civil subjects that extend far beyond the realm of use of force incidents.
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Old August 13, 2017, 01:56 PM   #2
Frank Ettin
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Quote:
Originally Posted by OldMarksman
Everyone who posts here or anywhere else on the Internet should understand that such posts are permanent, and they may be subject to discovery in legal proceedings at any time in the future. Should any member ever find himself or herself involved in such proceedings, posts containing comments that could be interpreted unfavorably could prove damaging....
And while speech may be free, it still has social and legal consequences. It can be evidence of motivation, predisposition, state of mind, intent, character, etc.

As outlined here by Massad Ayoob:
Quote:
...I know for a fact that we DO have the technology to pull things out of your hard drive that you thought were deleted. We DO have the right to ask you, under penalty of perjury, whether you post on any Internet forum, and under what name, and we DO have the power to subpoena any posts via your IP from the Internet hosts, who under law have no choice but to "give you up." Don't let the seeming anonymity of the Internet delude you: when things get serious, you won't be anonymous anymore....
He was trying to make the point, in general terms, that any notion you might have that you can't get caught for what you write over the Internet is hooey. Some folks would be very surprised by the amount of useful information the police and prosecutor can get from your computer and your Internet presence. Note that he mentions a subpoena. That is another form of compulsory process used to gather evidence. Or sometimes the police will need a search warrant, which they'll be likely to get; and sometimes they won't. But however they have to get it, if it's there they can and will get it.

The "take-home message" is that plaintiff lawyers, law enforcement and prosecutors know all about social media and have been learning to use it effectively in civil litigation, criminal investigations and prosecutions. See this article headlined "Bay Area prosecutors increasingly using social media posts in criminal cases" from the 16 August 2013 edition of the Contra Costa Times:
Quote:
PLEASANTON -- A teenage driver originally accused of vehicular manslaughter now faces a murder charge in the death of a bicyclist, partly because prosecutors say he bragged on Twitter about driving dangerously.

His case is part of a growing trend of social media posts being used as evidence against suspects, authorities said Friday.

....

As suspects feel compelled to post their misdeeds online for audiences to see, investigators have taken advantage, using the online quasi-confessions to bolster their cases, Bay Area prosecutors said.

In San Francisco, a cyclist in March fatally struck a 71-year-old pedestrian in a crosswalk after speeding through three red lights in the Castro District. Chris Bucchere, who eventually pleaded guilty to felony vehicular manslaughter, received a stiffer charge after he posted his explanation of the crash on a cycling group's website....
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