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Web networking photos and the effect on litigation strategy

This headline jumped out at me the other day. See Eric Tucker, Web Networking Photos Come Back to Bite Defendants. Basically, these pictures are being used as evidence in various trials (likely personal injury cases) and, at least in my take of the article, are invoking from the jury (or better, the judge at sentencing) the opposite of what the defense is trying to portray: antipathy.

At this point, I doubt I'll see anything come up on appeal regarding this issue, and even if I did, it would more likely come in the form of a discretionary call by the judge, in which case it's an uphill sell. If anything, I would question the relevance of some of these pictures, but if it is relevant, then I'm not sure how one could (with a straight face) argue that it's more prejudicial than probative. (Think in Liar Liar: "I object! Why? Because it's devastating to my case!") The pictures don't seem to be used at trial though, and they need not be, they are being used as an aggravating factor at sentencing. It's pretty clever.

This presumably took place in a Rhode Island state trial. For example, the prosecutor in this case used the photos to establish a timeline of events: "Two weeks after Joshua Lipton was charged in a drunken driving crash that seriously injured a woman, the 20-year-old college junior attended a Halloween party dressed as a prisoner." To make the case for an appropriate sentence, the prosecutor then "used the pictures to paint Lipton as an unrepentant partier who lived it up while his victim recovered in the hospital." To the prosecutor's credit, the "judge agreed, calling the pictures depraved when sentencing Lipton to two years in prison." Of course, Lipton's defense attorney notes: "the photos didn't accurately reflect his client's character or level of remorse, and made it more likely he'd get prison over probation." Nevertheless...

The bottom line is that in the age of the internet, everyone should be cognizant of what is going up on you. I know they say you should run a google search once a year on your name, along with your credit reports and what not, but you can preempt this sort of trouble by either making your facebook/myspace profile private; untagging or contacting your friends who put up unflattering photos of yourself, or better, don't allow yourself to be photographed in a compromising situation. As Lipton's attorney wisely observes, you never know when they could come back to bite you: "If it shows up under your name you own it, . . . you better understand that people look for that stuff."

Full post as published by The Once and Future Lawyer on July 22, 2008 (boomark / email).

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