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Sites Unseen

Social networking Web sites like Facebook and MySpace offer everything from conversing electronically with a former classmate, to trading photos from spring break in Mexico.

But some attorneys are using the sites as re-search tools to investigate clients, witnesses and jurors.

If they aren’t, they should be, according to defense attorney William R. Gallagher.

Gallagher recently discussed using information obtained through social networking sites in cross examination at the Wisconsin State Public Defenders Conference in Milwaukee.

He suggested that defense attorneys do their clients a disservice by not at least checking with them to see if they maintain a Web page used for social networking, in addition to the standard methods of digging up dirt.

“I think it’s the same thing that police and prosecutors would tell you … it’s sort of another search for the truth,” said Gallagher, who is an attorney with Arenstein & Gallagher, in Cincinnati.

“And if you don’t find that information, they often will.”

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Casual Conversations

Whether that “truth” comes in the form of a text message on a cell phone or a posted photo on MySpace, Gallagher said attorneys can take advantage of personal information that is often displayed publicly.

“Shortly after events a lot of times people, who believe they are in their own private world, will write down or say what is the truth,” added Gallagher.

Public Defender Katherine J. Dorl said attorneys within her office in Madison have utilized the networking sites to gather background on witnesses, with varying degrees of success.

“I’ve checked for clients of mine who have witnesses against them,” said Dorl. “A case that comes to mind is the school shooting in Weston and our staff looked at social Web sites for kids as potential witnesses.”

Dorl said that clients or witnesses often appear to be more open with their conversations on a social site, rather than in a courtroom setting.

At the same time, many do not realize their posted pictures or comments are not one-on-one, but more like one-on-one million.

Attorney Anne W. Reed said that social scientists are even developing studies that track social networkers’ on-line habits and those could potentially be used for case support.

“The fact that someone is using a certain site heavily or has a certain type of content on their page may or may not help draw conclusions on whether the information is relevant to at attorney’s case,” said Reed, of Reinhart Boerner Van Deuren S.C.

Reliability

While there may be an abundance of information available on social networking sites, authenticating it is another issue.

Gallagher suggested that the authentication of a text message or MySpace posting is no different than any other form of communication.

“I think the initial reaction is that be-cause it’s new technology, it’s harder to authenticate it,” said Gallagher. “It would be no different than finding someone’s diary and authenticating it.”

But whereas a diary may need a key to unlock its content, many Facebook and MySpace pages are freely viewable by anyone, including jurors and witnesses.

During the Steven Avery trial, defense attorney Dean A. Strang was notified of a Web site which had inaccurate information about his client.

“Someone maliciously created a false page for the client on one of the popular social networking sites,” said Strang. “The fake Web page included defamatory and false information. To the credit of the webmaster, the site took that page down immediately.”

When it comes to a client who is accused of a crime, Gallagher said, an attorney has an obligation to get him or her to terminate all potentially damaging communications.

But he also said there is a fine line between asking clients to refrain from posting information about themselves and destroying evidence.

“I’m not asking someone to destroy their hard drive, rather I am just asking them for no more conversations,” said Gallagher. “If a client has anything to say, come to my office and say it in front of me.”

Persuasive Tool

Dane County District Attorney Brian Blanchard said his office, as well as investigators and probation officers, have utilized information on social networking sites.

But he said to this point, the information is primarily useful in police investigation and potentially helpful in a limited number of cases like child pornography, hate crimes, or drug- and gang-related cases.

“Depending on what kind of case, the research may not be cost effective,” said Blanchard. “I don’t think we’d spend a lot of time digging through endless Facebook or MySpace pages.”

He said that judges have a responsibility to serve as “gatekeepers” as to what types evidence obtained through social networking sites is admissible.

“Everyone knows there’s a lot of junk on the Net,” said Blanchard. “Some of it is satirical, some mocking and some is just false.”

Nevertheless, ignoring the information, no matter how ridiculous, is not a solution, said Dorl, 38.

Even if a Facebook profile doesn’t offer any valuable case information, it could at least give an attorney some insight into his client’s world.

“People are willing to put so much out there, and it’s stuff that people my age don’t share with the world,” said Dorl. “It’s amazing, but not necessarily in a good way.”

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