Gun Forums and Prosecution......?

(BH) · July 18, 2009, 12:11 PM

Ok, so this has been on my mind for some time now and seeing it mentioned in passing by another TFL member inspired me to start a thread.

I feel like this is a very important topic for internet gun forum members. I did a couple of searches and they didn't yield too much info on the subject.

Here's my question:

If for some terrible reason, an incident transpires where you have to use a firearm for self defense, could a prosecutor use the fact that you are a member of an online forum, and the contents of said forum against you?

It just seems like if you find yourself in that terrible situation, it would be easy for the prosecution to paint a nice picture about how you are some murderous gun fiend who gets online and talks incessantly about his tools of death.

What if you are one the people who have little catchphrases in your signature saying some kind of shoot first/ask questions later kind of line? I didn't want to post anyone's in specific, but if you browse for a few you will some "prosecution treats". I'm really curious if they would use something like this in court.

Any thoughts?

Bartholomew Roberts · July 18, 2009, 12:21 PM

Yes, the contents of this forum (or any forum) and other information on your computer can be used as evidence against you in a prosecution if they are otherwise admissible under the Rules of Evidence.

I think a good defense attorney could probably make admissibility a hotly contested issue, but I bet you could spend a lot of money arguing about it.

If you are really interested in the topic, here is a good start on it:
http://www.ingentaconnect.com/conten...6?crawler=true

Pahoo · July 18, 2009, 12:33 PM

Bart is right on the money and any good prosecutor will dig up stuff that might amaze you. Any and all training and transactions will be presented in his light. For instance,; "Have you ever killed an animal? not "are you a hunter. Might also be aware of posts that ask you what you own, what you shoot and pictures.

"I'm not paranoid, I'm just private and protective."

Be Safe !!!

melchloboo · July 18, 2009, 01:27 PM

Anything you write in forums can be introduced, under certain conditions. It is essential that you have a competent lawyer that thoroughly understands the rules of evidence.

For example, the prosecution is allowed to introduce evidence of your violent character to rebut your evidence that you are a pacifist. (Rule 404 in most states). Similarly if you attack the character of the person you were forced to shoot. I have seen plenty of defense attorneys inadvertently "open the door" for the prosecution to introduce evidence of character and past crimes. Another thing your posts might be relevant for is evidence of motive, intent, or plan, if for example you write "I would shoot even after the threat stopped, as I would not want to leave the attacker alive to testify against me."

**Shane Tuttle** · July 18, 2009, 01:49 PM

How are they going to prove it was actually you that posted the statements?

Guess who typed up the above sentence....

Brian Pfleuger · July 18, 2009, 01:54 PM

Quote:

How are they going to prove it was actually you that posted the statements?

Guess who typed up the above sentence....

They may or may not be able to prove it for any given singular statement but they most certainly can trace the posts to your computer and use your whereabouts and testimony from others to show that it could have been no one else at the computer at the time that at least some of the statements were made.

(BH) · July 18, 2009, 02:11 PM

Quote:

"I would shoot even after the threat stopped, as I would not want to leave the attacker alive to testify against me."

melchloboo,
I see that all the time on here. It is exactly what I'm talking about.

Much like everyone else on here, I keep guns for HD, but that doesn't mean I feel the need to share the ins and outs of my personal morality regarding the subject with other forum members.

Every time I see stuff like the above quote it makes me think that if something ever happened and they used the quote as evidence, that would just look really bad to a jury. I could see that tipping the old scales out of the defendants favor real quick.

**Shane Tuttle** · July 18, 2009, 02:21 PM

Quote:

They may or may not be able to prove it for any given singular statement but they most certainly can trace the posts to your computer and use your whereabouts and testimony from others to show that it could have been no one else at the computer at the time that at least some of the statements were made.

I was upstairs getting a drink while my wife posted that statement. Innocent until proven guilty. I have my alibi. The defense rests...

Uncle Buck · July 18, 2009, 02:48 PM

I would guess it depends on whether you use a private attorney or a public defender. A lot of public defenders are so over-worked they do not have the time to really run a great defense.

But a lot of it, I believe, would depend on the types of post you leave. If you offer helpful advice and such, I think the prosecution would have a little harder time trying to make something of it.
If you offer the "Kill them all and let God sort them out" sort of advice, then it would be a lot easier for the prosecution (again, depending on your attorney).
Either way, I guess if anyone was really concerned, they could be careful what they post. I think for most people, myself included, I never really thought about, nor do I worry about it now.

Brian Pfleuger · July 18, 2009, 02:51 PM

Quote:

I was upstairs getting a drink while my wife posted that statement. Innocent until proven guilty. I have my alibi. The defense rests...

Yep, it's the 3848 others you've got to worry about now.

maestro pistolero · July 18, 2009, 02:59 PM

On the other hand, a member's posts could be exculpatory if the prosecution is asserting he or she is a bloodthirsty vigilante, but the member's posts have demonstrated character entirely to the contrary, and an understanding of the ethical and principles of legal self defense that is beyond reproach.

Brian Pfleuger · July 18, 2009, 03:53 PM

Quote:

On the other hand, a member's posts could be exculpatory if the prosecution is asserting he or she is a bloodthirsty vigilante, but the member's posts have demonstrated character entirely to the contrary, and an understanding of the ethical and principles of legal self defense that is beyond reproach.

Precisely. Something to keep in mind with each and every post we make.... except, now this post could make it look like all my other posts were just made to try and prove that I'm not bloodthirsty and now this post shows that I was aware of that possibility, but, now, having stated such, either end of the spectrum could be possible.... crap....

Jim March · July 18, 2009, 04:16 PM

Yeah, but do remember, if they find one screwball thing you wrote at one point, you DO have the option of introducing a ton of sane stuff.

Thinking back on, gawd, I dunno how many posts here and other forums, there's maybe a few that might look a bit loony - out of somewhere around 20,000(!). More if you include mailing lists. So if they find two or three that on their own look screwball, OK, in terms of a "sanity check roll" that's not half bad

.

RDak · July 18, 2009, 04:47 PM

A prosecutor can definitely use what you say on an internet forum against you in a trial.

Dave_Shotgun · July 18, 2009, 05:08 PM

Good topic BH. I guess you just have to be careful not to post anything that makes you seem like some gun toting maniac. Think before you post is definitely a good idea.

Old Grump · July 18, 2009, 06:00 PM

My rule of thumb is not post anything I would be afraid for my mother, grandmother or pastor to see. That being said, sometime they worry about me, sometimes they worry a lot.

cbrgator · July 18, 2009, 06:20 PM

Beyond a prosecutor trying to trace back to the computer to determine who made the posts, etc... How would a prosecutor even know you posted to a forum in the first place?

For instance, If I am involved in a self-defense shooting in my home and prosecutors decide to take me to court, how would they ever know that I am a member of this forum?

pax · July 18, 2009, 06:23 PM

Quote:

If for some terrible reason, an incident transpires where you have to use a firearm for self defense, could a prosecutor use the fact that you are a member of an online forum, and the contents of said forum against you?

Yes, and yes.

Don't ever post anything online anonymously that you would not be willing to post under your own name on the front page of the daily paper -- or have your mother read.

See http://www.aware.org/arttruelaw/lifeagainstme.shtml for more about the types of things that can or cannot be admitted into evidence at trial.

Quote:

Beyond a prosecutor trying to trace back to the computer to determine who made the posts, etc... How would a prosecutor even know you posted to a forum in the first place?

It is increasingly common for courts to issue warrants for the contents of hard drives. If they've got your hard drive, they know where you post and under what names.

pax

cbrgator · July 18, 2009, 06:29 PM

Quote:

It is increasingly common for courts to issue warrants for the contents of hard drives. If they've got your hard drive, they know where you post and under what names.

Not for that type of crime. A warrant is issued for a search where evidence may be reasonably found. Magistrates will issue warrants for computers for crimes like hacking, online kiddie pics, etc. A self-defense shooting gone wrong has no connection to a computer. Any warrant issued for a computer in a self-defense gone wrong situation that turns up this sort of evidence like forum postings, would almost certainly be reversible error on appeal.

**OldMarksman** · July 18, 2009, 06:51 PM

Quote:

Magistrates will issue warrants for computers for crimes like hacking, online kiddie pics, etc.

Prosecutors and investigators can and have gotten subpoenas for computers, memoranda, files, email server records, telephone records, cell phone records including locational data, GPS data from cars, etc. for all kinds of suspected crimes--conspiracy, plans to commit robbery or murder, attempts to defraud, bribery, federal false claims and false statements, espionage, blackmail, jury tampering---to mention just a few.

Quote:

A self-defense shooting gone wrong has no connection to a computer. Any warrant issued for a computer in a self-defense gone wrong situation that turns up this sort of evidence like forum postings, would almost certainly be reversible error on appeal.

On what basis? The defendant will have necessarily admitted the use of deadly force and must provide evidence to support a claim that the act was justified. The existence of evidence of any kind pertaining to the credibility of the defendant's statements to invetigators or to a grand jury, and/or of his testimony in court, would be completely relevant, as would any evidence pertaining to the defendant's state of mind.

Forum postings could easily be used to try to establish state of mind or to show contradictions in statements or testimony.

cbrgator · July 18, 2009, 07:10 PM

Quote:

Forum postings could easily be used to try to establish state of mind or to show contradictions in statements or testimony.

Yes, I understand that. But they'd have to first know/suspect that there were forum postings in the first place. Prosectuors/detectives can't go on blind treasure hunts. In the hypothetical situations you listed, it may have been suspected that there was some communication that had taken place on the computer in order to accomplish/attempt the listed crimes. In a spur of the moment self-defense shooting, there is no premeditation and no reason to think there would be anything related to a self-defense shooting gone wrong on the defendant's computer.

Jim March · July 18, 2009, 07:11 PM

Quote:

It is increasingly common for courts to issue warrants for the contents of hard drives. If they've got your hard drive, they know where you post and under what names.

Welcome to the wonderful world of whole-disk encryption with a long key found noplace else but my head

.

Sarge · July 18, 2009, 07:31 PM

I spent 12 years as the investigator for a prosecuting attorney.

A. Let's say you shoot somebody. Heck, it's even self defense and the facts and witness statements support it.

You're not getting charged. No search warrant will be applied for. Nobody at the PA Office gives a damn if you used reloads. Unless Castle Doctrine prohibits it, you might get sued. It is by no means guaranteed that you will- but if you do, nobody's going to get a 'search warrant' on a civil case. Opposing counsel will have to earn their bucks to prove that you are 'Zoro_MS13' on an internet forum.

B. Let's say you shoot somebody. This time it's over a parking space, pinochle game, hooker or whatever. The other guy did nothing which justifies your use of deadly force and your big sack of lies has a hole in it. You get arrested. The cops may (even should) ask for consent to search your premises but your 3rd cousins next door neighbor is a title attorney and he says to keep your mouth shut and sign nothing. (Not bad advice for a real estate guy

)

No diff...it's a homicide investigation so the coppers get their search warrant, get your computer an the lab peels the hard drive. Wow, this guy posts on all kinds of weapons-related forums. (Do you know how SQUARE that is? What we REALLY want to see is emails between accomplices, game diagrams for robberies/gang hits, etc.) So they log into your account and see where you asked what the best self-defense gun/load/etc is and you got 14 stupid answers, replied two more times and apparently went to sleep in the middle of typing a reply. Great. Oh, and you have 3,716 posts on that forum alone and you belong to 6 others. Like I'm gonna read through that crap...I'd use the search function on each to look for MO, intent, premeditation, accomplices etc.

I wouldn't spend a lot of time on it however because the best evidence of a homicide is that which is obtained from the scene, witness/suspect interviews and the morgue. But I'm an old street cop. Some of these new hotshots practically live in cyberspace. Me? I'm just trying to avoid becoming roadkill on the information superhighway

(BH) · July 18, 2009, 09:23 PM

Sarge, great input. It's good to hear from someone in the field. Thanks.

**OldMarksman** · July 18, 2009, 10:47 PM

Quote:

In the hypothetical situations you listed, it may have been suspected that there was some communication that had taken place on the computer in order to accomplish/attempt the listed crimes.

I listed no hypothetical situations at all. And no, there's no requirement at all to suspect such communication. Everything you have is subject to discovery.

In the case of a shooting, that includes your gun collection, your reloading bench and data, your targets, your bookshelf, and yes, your computer.

I don't know if you have ever received a subpoena, but I have.

Quote:

In a spur of the moment self-defense shooting, there is no premeditation and no reason to think there would be anything related to a self-defense shooting gone wrong on the defendant's computer.

One: How is anyone to conclude that a shooting is a "spur of the moment self defense shooting"? That's the question. Any shooting could involve negligence, an accident, consensual combat, premeditated murder, whatever. That is what the investigators and he judicial system will try to determine. If the field evidence is clear and supports a claim of self defense, fine. If not, that's where the fun begins.

By the way, premeditation is not a prerequisite for conviction for a crime.

Two: What do you think constitutes a "self defense shooting gone wrong"?

There's a shooting. The shooter claims self defense. Maybe there's clear evidence to support his claim. Maybe not. If not....it's all open to investigation. Everything.

Someone shoots another person. Claims he fired in self defense. No witnesses. Why would anyone believe the story? Wouldn't anyone make that claim?

I really do not think you read the information on the link that pax provided.

Read it. Heed it.

If that doesn't help, contact an experienced criminal trial lawyer.

In the mean time, understand that everything you put in the mail or in email or on the internet is discoverable and is permanent and cannot be retracted.

July 18, 2009, 12:11 PM	#1
(BH) Senior Member Join Date: April 15, 2009 Location: East TN Posts: 638	Gun Forums and Prosecution......? Ok, so this has been on my mind for some time now and seeing it mentioned in passing by another TFL member inspired me to start a thread. I feel like this is a very important topic for internet gun forum members. I did a couple of searches and they didn't yield too much info on the subject. Here's my question: If for some terrible reason, an incident transpires where you have to use a firearm for self defense, could a prosecutor use the fact that you are a member of an online forum, and the contents of said forum against you? It just seems like if you find yourself in that terrible situation, it would be easy for the prosecution to paint a nice picture about how you are some murderous gun fiend who gets online and talks incessantly about his tools of death. What if you are one the people who have little catchphrases in your signature saying some kind of shoot first/ask questions later kind of line? I didn't want to post anyone's in specific, but if you browse for a few you will some "prosecution treats". I'm really curious if they would use something like this in court. Any thoughts?

July 18, 2009, 01:49 PM	#5
Shane Tuttle Staff Join Date: November 28, 2005 Location: Montana Posts: 9,443	How are they going to prove it was actually you that posted the statements? Guess who typed up the above sentence.... __________________ If it were up to me, the word "got" would be deleted from the English language. Posting and YOU: http://www.albinoblacksheep.com/flash/posting

July 18, 2009, 04:16 PM	#13
Jim March Senior Member Join Date: February 14, 1999 Location: Pittsburg, CA, USA Posts: 7,417	Yeah, but do remember, if they find one screwball thing you wrote at one point, you DO have the option of introducing a ton of sane stuff. Thinking back on, gawd, I dunno how many posts here and other forums, there's maybe a few that might look a bit loony - out of somewhere around 20,000(!). More if you include mailing lists. So if they find two or three that on their own look screwball, OK, in terms of a "sanity check roll" that's not half bad . __________________ Jim March

July 18, 2009, 06:00 PM	#16
Old Grump Member in memoriam Join Date: April 9, 2009 Location: Blue River Wisconsin, in Posts: 3,144	My rule of thumb is not post anything I would be afraid for my mother, grandmother or pastor to see. That being said, sometime they worry about me, sometimes they worry a lot. __________________ Good intentions will always be pleaded for any assumption of power. The Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern will, but they mean to govern. They promise to be good masters, but they mean to be masters. --Daniel Webster--

July 18, 2009, 07:31 PM	#23
Sarge Senior Member Join Date: May 12, 2002 Location: MO Posts: 5,457	I spent 12 years as the investigator for a prosecuting attorney. A. Let's say you shoot somebody. Heck, it's even self defense and the facts and witness statements support it. You're not getting charged. No search warrant will be applied for. Nobody at the PA Office gives a damn if you used reloads. Unless Castle Doctrine prohibits it, you might get sued. It is by no means guaranteed that you will- but if you do, nobody's going to get a 'search warrant' on a civil case. Opposing counsel will have to earn their bucks to prove that you are 'Zoro_MS13' on an internet forum. B. Let's say you shoot somebody. This time it's over a parking space, pinochle game, hooker or whatever. The other guy did nothing which justifies your use of deadly force and your big sack of lies has a hole in it. You get arrested. The cops may (even should) ask for consent to search your premises but your 3rd cousins next door neighbor is a title attorney and he says to keep your mouth shut and sign nothing. (Not bad advice for a real estate guy ) No diff...it's a homicide investigation so the coppers get their search warrant, get your computer an the lab peels the hard drive. Wow, this guy posts on all kinds of weapons-related forums. (Do you know how SQUARE that is? What we REALLY want to see is emails between accomplices, game diagrams for robberies/gang hits, etc.) So they log into your account and see where you asked what the best self-defense gun/load/etc is and you got 14 stupid answers, replied two more times and apparently went to sleep in the middle of typing a reply. Great. Oh, and you have 3,716 posts on that forum alone and you belong to 6 others. Like I'm gonna read through that crap...I'd use the search function on each to look for MO, intent, premeditation, accomplices etc. I wouldn't spend a lot of time on it however because the best evidence of a homicide is that which is obtained from the scene, witness/suspect interviews and the morgue. But I'm an old street cop. Some of these new hotshots practically live in cyberspace. Me? I'm just trying to avoid becoming roadkill on the information superhighway __________________ People were smarter before the Internet, or imbeciles were harder to notice.

July 18, 2009, 12:21 PM	#2
Bartholomew Roberts member Join Date: June 12, 2000 Location: Texas and Oklahoma area Posts: 8,462	Yes, the contents of this forum (or any forum) and other information on your computer can be used as evidence against you in a prosecution if they are otherwise admissible under the Rules of Evidence. I think a good defense attorney could probably make admissibility a hotly contested issue, but I bet you could spend a lot of money arguing about it. If you are really interested in the topic, here is a good start on it: http://www.ingentaconnect.com/conten...6?crawler=true

July 18, 2009, 12:33 PM	#3
Pahoo Senior Member Join Date: February 16, 2006 Location: IOWA Posts: 8,783	Bart is right on the money and any good prosecutor will dig up stuff that might amaze you. Any and all training and transactions will be presented in his light. For instance,; "Have you ever killed an animal? not "are you a hunter. Might also be aware of posts that ask you what you own, what you shoot and pictures. "I'm not paranoid, I'm just private and protective." Be Safe !!!

July 18, 2009, 01:27 PM	#4
melchloboo Senior Member Join Date: October 2, 2008 Posts: 279	Anything you write in forums can be introduced, under certain conditions. It is essential that you have a competent lawyer that thoroughly understands the rules of evidence. For example, the prosecution is allowed to introduce evidence of your violent character to rebut your evidence that you are a pacifist. (Rule 404 in most states). Similarly if you attack the character of the person you were forced to shoot. I have seen plenty of defense attorneys inadvertently "open the door" for the prosecution to introduce evidence of character and past crimes. Another thing your posts might be relevant for is evidence of motive, intent, or plan, if for example you write "I would shoot even after the threat stopped, as I would not want to leave the attacker alive to testify against me."

July 18, 2009, 02:48 PM	#9
Uncle Buck Senior Member Join Date: June 21, 2009 Location: West Central Missouri Posts: 2,592	I would guess it depends on whether you use a private attorney or a public defender. A lot of public defenders are so over-worked they do not have the time to really run a great defense. But a lot of it, I believe, would depend on the types of post you leave. If you offer helpful advice and such, I think the prosecution would have a little harder time trying to make something of it. If you offer the "Kill them all and let God sort them out" sort of advice, then it would be a lot easier for the prosecution (again, depending on your attorney). Either way, I guess if anyone was really concerned, they could be careful what they post. I think for most people, myself included, I never really thought about, nor do I worry about it now.

July 18, 2009, 02:59 PM	#11
maestro pistolero Senior Member Join Date: August 16, 2007 Posts: 2,153	On the other hand, a member's posts could be exculpatory if the prosecution is asserting he or she is a bloodthirsty vigilante, but the member's posts have demonstrated character entirely to the contrary, and an understanding of the ethical and principles of legal self defense that is beyond reproach.

July 18, 2009, 04:47 PM	#14
RDak Senior Member Join Date: October 17, 2004 Location: Michigan Posts: 734	A prosecutor can definitely use what you say on an internet forum against you in a trial.

July 18, 2009, 05:08 PM	#15
Dave_Shotgun Member Join Date: April 4, 2009 Location: Ontario Posts: 32	Good topic BH. I guess you just have to be careful not to post anything that makes you seem like some gun toting maniac. Think before you post is definitely a good idea.

July 18, 2009, 06:20 PM	#17
cbrgator Senior Member Join Date: June 1, 2009 Posts: 135	Beyond a prosecutor trying to trace back to the computer to determine who made the posts, etc... How would a prosecutor even know you posted to a forum in the first place? For instance, If I am involved in a self-defense shooting in my home and prosecutors decide to take me to court, how would they ever know that I am a member of this forum?

July 18, 2009, 09:23 PM	#24
(BH) Senior Member Join Date: April 15, 2009 Location: East TN Posts: 638	Sarge, great input. It's good to hear from someone in the field. Thanks.