The Incriminating and the Obvious

December 6, 2011

A revealing exchange has been exclusively leaked to the SCL web site by an unimpeachable source at the FBI:
{i}Eliot Ness Jnr laid before Don Corleone III the damning evidence gleaned from his Facebook account. The iPad showed his latest entry ‘Today I made the St Valentine’s Day Massacre look like a picnic. Eat it up Gambinos’. Don Corleone affected disdain ‘It is nothing, just referring to a game – an MMORPG we play in honour of the old days. Ask the Gambinos – they will say nothing against me’.
‘If I can find any Gambinos alive, and it is not looking likely, I will certainly ask them’ said Ness. ‘But what about this tweet: “the price of horse’s heads is just ridiculous. #Wal-Mart will pay with blood”. Isn’t ‘capo di tutti capi’ your twitter account? A bit of a long and clumsy handle if I may say so, and you have not mastered the use of the hash tag but it comes from this smartphone we found on you when you were arrested.’
‘This is not my phone. I would not sully my hands with this Android filth’, protested the Don, now showing genuine anger. ‘I found it in the gutter, near the Gambinos’s house’ he added, crossing himself and spitting viciously at the same time.
‘OK, Ok, calm down’ said Ness. ‘I suppose this SMS to Customer Service at Blackberry “fix my BBM or tonight you sleep with the fishes” is nothing to do with you either.’
The Don smiled, his confidence returning ‘Is that all you have? They must have had millions of such messages. [many from SCL members: Ed] They are the ones you should be arresting. Get me my lawyer. I am losing patience with this charade.’
Ness smiled. ‘Ok, get him his lawyer. We can all watch the execution of Sonny Bonnaro on Don Corleone’s YouTube channel together’.
Don Corleone III paled. He was beginning to regret his failure to stick to the traditional code of iMerta.{/i}

Maybe I am getting carried away. And it does look like I have been reading too many detective stories lately – bad ones at that. But I was reminded of how crucial evidence can sometimes be in plain sight, digitally speaking, by Tracey Stretton’s recent article, {Anything You Tweet or Post Can and Will Be Used Against You:}. She mentions Hartshorn, Blackshaw and Sutcliffe, three of the people posting messages on Facebook at the time of the riots and being left with no alternative but to plead guilty to serious charges having been condemned out of their own mouth (or keyboard). Hartshorn’s entry included ‘Whose up for a riot tonight in town?’ and a series of racist suggestions. Blackshaw used Facebook to set up and plan a public event called ‘Smash down in Northwick Town’. Sutcliffe used Facebook to construct a web page called “The Warrington Riots” – 47 people said they would go.

While condemning such behaviour, especially the failure to specify a dress code for the ‘event’, one is stunned by the stupidity on display. Is my Don Corleone fantasy so far from the reality? In a recent Court of Appeal case, Daniel Evans was convicted of causing grievous bodily harm with intent in relation to a serious assault involving the use of a car. He pleaded not guilty (on an unknown basis) despite leaving this message on his Facebook page: ‘Some lad from Platt Bridge kicked off, so I ran him over’. I bet that cross-examination did not stretch the ingenuity of the prosecution advocate.

That criminals are often stupid will come as no surprise to lawyers. But my point, and bear with me because I am getting there, is that it is not just criminals that are stupid. Consider any number of examples from Tracey Stretton’s article and her central message that ‘the spontaneity and casual nature of social networking means we are probably more candid than we would be when writing even an e-mail and certainly a letter. Most people give very little thought to the consequences of what they say on social networking sites and do not realise that this information is often publicly available or can be obtained by litigants or law enforcement agencies even where it is not.’. Now I might be inclined to substitute the word ‘stupid’ for the word ‘candid’ but I agree with every other word.

Of course the limits of civil proceedings, and especially the limited resources available for investigation and the rules forbidding ‘fishing expeditions’, may well cramp your style when seeking the case-breaking nugget that litigation lawyers dream about – a real Lulu the dog point. But the technology to help is improving rapidly. Moreover, often little more than common-sense investigation and a little out-of-the-box thinking is required. Consider {the case of the lawyer from Virginia who, having accessed his client’s Facebook account, directed his paralegal to instruct the client plaintiff to ‘clean it up’ because ‘we don’t want blowups of this stuff at trial’:}. The case serves both as an example of lawyers being as stupid as criminals (as it must have been obvious on the facts that the account had already been accessed by the defence lawyers) and offers a simple example of the usefulness of checking around freely available information before putting the other side on alert. Another obvious use of social media arises when the veracity of a witness from the other side is in issue and include checking that they really were where they say they were. A supporting witness (eg a relative or spouse) might well have a status update that conflicts with a claim to have seen an event unfold in a strikingly similar way to the claimant, especially if the event was in Manchester and their status is ‘on train stuck in Reading’.

The possibilities may not be endless but they are legion. The need to be alert to the whole gamut of digital evidence at the earliest possible stage is not just the preserve of the forensic specialist but is now essential for all lawyers, or all litigation lawyers at least. Don’t think of digital evidence as a specialist’s preserve. Distinguish {i}carefully{/i} between the situation where you need every byte frozen and a true forensic specialist is required (eg where any interference with a computer will enable the other side to cry foul), and the sort of enquiry that a law-abiding News International journalist might carry out. (Bad example, but you get the idea.)

But bear in mind these sage words from {i}R v D{/i} [2011] EWCA Crim 2305, where Mr Justice Mackay, referring to the complainant’s Facebook entries, said ‘The complex mixture of motives which impels people, especially young people, to post messages on such sites includes, the court suspects, the desire to attract attention, admiration from peers and to provoke the interest of others in the person posting the material. We suspect that objective truth and the dissemination of factual evidence comes low on the list.’ Don Corleone III may well be looking to cite those words.