In an unprecedented move that not only greatly concerns criminal defense lawyers but also prosecutors and free speech advocates, the California Supreme Court in a gang-related murder trial has ruled that attorneys can subpoena private social media posts pertinent to the case.
Interestingly, the request for production of those records came from the defense team.
Facebook, Twitter and Instagram are all subject to the order. Facebook’s public relations team issued a statement saying the company was weighing legal options, but believes federal law bars any order mandating the platforms turn over private content of alleged crime victims to defendants and defense lawyers. The Fortune 500 company’s goal, it says, is to protect the privacy interests of its customers. So the company may be slow to comply – or it might not comply at all, though the latter could set off an intense legal battle with potential to reach the U.S. Supreme Court and have extensive implications.
The court’s decision lifted a previous stay imposed by the appellate court on the San Francisco trial court’s order, which high court justices cited as providing compelling enough reason to justify access to the private messages. This is the very first time that an order like this has been imposed in California.
As Fort Lauderdale criminal defense attorneys can explain, the ruling doesn’t have any direct impact on Florida case proceedings, but it is not uncommon for states to look to sister courts to ascertain how they will rule in similar cases, should they arise. It is very likely this issue will continue to crop up not only in Florida, but around the country.
The Stored Communications Act in Criminal Defense Trials
Courts generally are not keen on compelling anyone to produce private documents or exchanges. However, that doesn’t mean they won’t do it if there is compelling legal justification.
The primary hurdle the criminal defense attorneys in this case had to argue was the burden set forth in the 1986 Stored Communications Act. This provision of law conflicts with a criminal defendant’s constitutional rights to discovery of evidence that may help prove innocence.
The federal law prohibits communications companies from sharing information with anyone except intended recipients and senders of private messages – except under a warrant, for which investigators must show probable cause.
Although this may seem straightforward, the reality is the authors of this act never exactly mulled “privacy” in terms of social media. That’s because social media didn’t exist as we know it in 1986 or even in 2006. This sets it up for an inherent conflict with modern practice. Social media firms argue this information is only available via court order.
There have been cases wherein social media firms have been ordered to turn over this information. However, they may still be prejudiced because this information often isn’t provided until the trial phase – problematic considering the majority of criminal cases end in a plea deal before trial.
The California Supreme Court, however, is now taking a different stance. Last year, the court held defense attorneys would be allowed to glean posts from social media that were public, but was silent on the issue of how to deal with private exchanges.
But even this doesn’t mean defense attorneys will automatically get what they’re seeking. Ultimately, the lower court can still review the posts in question and determine which are sufficiently probative and not disparately prejudicial.
This isn’t a brand new issue, and law enforcement agencies and prosecutors have in the past been successful in compelling social media companies to turn over private messages.
Criminal Case in Question
In this case, one of the defendants was just 14 when he allegedly killed a man and attempted to kill the decedent’s girlfriend in a drive-by shooting in San Francisco. The young teen reportedly told investigators that he and the victim who died had exchanged messages prior to the incident, and that the victim tagged him in an Instagram video, including one that involved firearms.
The child admitted he shot the man, and said he would do it again, as the decedent “would have done the same to us.”
Defendant was tried as a juvenile and found “responsible” for decedent’s murder and the attempted murder of decedent’s girlfriend (also a minor). He was deemed a ward of the court, committed to a term of eight decades to life in custody.
Now, two other defendants are facing trial as adults, and their defense lawyers seek private messages that they believe were deleted from decedent’s account that may help them build a case for self-defense or at least mitigating circumstances.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Defense in murder case can obtain private social media posts, July 19, 2019, Washington Post