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HIGH-TECH HEARSAY?

Attorney Richard Hart displays Facebook on his computer in his Milwaukee office. Hart has used Facebook posts as evidence in divorce cases. (WLJ photo by Kevin Harnack)

Attorney Richard Hart displays Facebook on his computer in his Milwaukee office. Hart has used Facebook posts as evidence in divorce cases. (WLJ photo by Kevin Harnack)

It’s no secret that people post incriminating information on Facebook.

Divorce lawyers are taking notice and mining social media sites for evidence, to contradict financial hardship claims by a spouse or showcase crude behavior by a parent in a custody battle.

Both the admissibility and credibility of Facebook postings are debatable. While attorneys see it as a viable source of information that bolsters their arguments, presiding Milwaukee County Family Court Judge Michael J. Dwyer said in his experience, the evidence is often irrelevant to the legal crux of a case.

“Usually, it’s fuel for a fire that the court is not interested in,” he said. “It’s the emotional side of the argument that people want to pursue and it’s more atmospheric, not the facts.”

That’s if a Facebook post is even allowed as evidence, which is a rarity in Dwyer’s court.

Social media posts present similar admissibility issues as e-mails or text messages, said Dwyer, because of the difficulty in authenticating the source.

In some instances, text messages have been verified by telecommunications providers, but the judge has yet to see that done with Facebook posts.

“I think there are very big obstacles,” Dwyer said. “How do you authenticate a Facebook page?”

Given the difficulty in authenticating the source of a post, they amount to little more than hearsay, he said.

“If a party denies making the post, it’s not admissible,” Dwyer said.

Stafford Rosenbaum attorney Anthony J. Menting argued that when someone “self-authenticates,” that serves as confirmation, and he has never had someone deny posting a written statement or picture on their page.

Public postings are no different than someone who takes an ad out in The New York Times, said Phillips & Gemignani attorney Charles I. Phillips, and are discoverable.

The Waukesha divorce lawyer advises clients that anything they have on their page could be subject to discovery.

Even if a party cops to the posting, the usefulness of the evidence is often limited, in part because Wisconsin is a no-fault divorce and marital property state.

But attorneys argued the value of Facebook posts, pointing out that they can be supporting evidence in custody or other arguments.

Facebook postings are better sources than third-party conversations, said Milwaukee divorce lawyer Richard H. Hart, because if admitted to, they are a first-hand account of what a person said or did.

“In the past, we always had people on both sides, or a friend or relative and you never quite knew,” he said. “If you have the people themselves saying it, that’s probably the best evidence you can get.”

Hart has utilized Facebook evidence to strengthen child custody arguments for clients and they provide better ammunition than “he said, she said” testimony.

On more than one occasion, he has used posts or pictures to contradict statements by a spouse that he or she doesn’t drink, swear or engage in behavior that would negatively influence a child.

“I’ve seen judges, based on those posts, say that the other parent gets more time and more control because they just cannot trust the person to be responsible,” Hart said.

In his experience, Facebook postings have been “fair game” as evidence because they are public communications.

Even pages which require a login or “friend” status tend to become available from an acquaintance of one of the parties.

“If a party doesn’t tell, we can subpoena it,” Hart said.

Menting has had similar success with using social media as evidence in divorces. He was recently involved in a case in which he used the opposing party’s MySpace page as leverage for child placement with his client.

“A statement is a statement and a photo is a photo,” he said. “The person is putting this out for the world to see and it’s not as if someone is intercepting this conversation or taking photos of the person.”

Menting hasn’t encountered accessibility roadblocks either. In each of his cases which involved social media, parties have never contested the evidence.

“I’ve never had someone say, ‘I didn’t do that’ and never had to argue that point before a judge,” he said.

At the very least, Milwaukee divorce attorney Richard J. Podell said the posts he’s provided in cases were allowed as a rebuttal where a spouse denies an extramarital affair.

But he and others admitted that the outcome of a divorce doesn’t hinge on a derogatory Facebook post.

“It’s supportive,” Menting said. “But you have to have a case with substance and one or two entries in Facebook are not real substantive.”

Dwyer conceded that Facebook is a “font of information” but said most people don’t post things that are central to their case.

One situation he commonly encounters is where Facebook posts are submitted to contest the financial situation of one side or the other, such as one spouse claiming poverty in court, despite bragging about living the “good life” in a post.

“There is usually a perfectly good explanation,” he said “but on Facebook, you want to look good.”

Jack Zemlicka can be reached at jack.zemlicka@wislawjournal.com.

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