NationStates Jolt Archive

Don't drink and drive, then post on Facebook
Photos on social networking sites come back to bite defendants

PROVIDENCE, R.I. - 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. Pictures from the party showed him in a black-and-white striped shirt and an orange jumpsuit labeled "Jail Bird."

In the age of the Internet, it might not be hard to guess what happened to those pictures: Someone posted them on the social networking site Facebook. And that offered remarkable evidence for Jay Sullivan, the prosecutor handling Lipton's drunken-driving case.

Sullivan used the pictures to paint Lipton as an unrepentant partier who lived it up while his victim recovered in the hospital. A judge agreed, calling the pictures depraved when sentencing Lipton to two years in prison.

Online hangouts like Facebook and MySpace have offered crime-solving help to detectives and become a resource for employers vetting job applicants. Now the sites are proving fruitful for prosecutors, who have used damaging Internet photos of defendants to cast doubt on their character during sentencing hearings and argue for harsher punishment.

"Social networking sites are just another way that people say things or do things that come back and haunt them," said Phil Malone, director of the cyberlaw clinic at Harvard Law School's Berkman Center for Internet & Society. "The things that people say online or leave online are pretty permanent."

The pictures, when shown at sentencing, not only embarrass defendants but also can make it harder for them to convince a judge that they're remorseful or that their drunken behavior was an aberration. (Of course, the sites are also valuable for defense lawyers looking to dig up dirt to undercut the credibility of a star prosecution witness.)

Prosecutors do not appear to be scouring networking sites while preparing for every sentencing, even though telling photos of criminal defendants are sometimes available in plain sight and accessible under a person's real name. But in cases where they've had reason to suspect incriminating pictures online, or have been tipped off to a particular person's MySpace or Facebook page, the sites have yielded critical character evidence.

"It's not possible to do it in every case," said Darryl Perlin, a senior prosecutor in Santa Barbara County, Calif. "But certain cases, it does become relevant."

Perlin said he was willing to recommend probation for Lara Buys for a drunken driving crash that killed her passenger last year — until he thought to check her MySpace page while preparing for sentencing.

The page featured photos of Buys — taken after the crash but before sentencing — holding a glass of wine as well as joking comments about drinking. Perlin used the photos to argue for a jail sentence instead of probation, and Buys, then 22, got two years in prison.

"Pending sentencing, you should be going to (Alcoholics Anonymous), you should be in therapy, you should be in a program to learn to deal with drinking and driving," Perlin said. "She was doing nothing other than having a good old time."

Santa Barbara defense lawyer Steve Balash said the day he met his client Jessica Binkerd, a recent college graduate charged with a fatal drunken driving crash, he asked if she had a MySpace page. When she said yes, he told her to take it down because he figured it might have pictures that cast her in a bad light.

But she didn't remove the page. And right before Binkerd was sentenced in January 2007, the attorney said he was "blindsided" by a presentencing report from prosecutors that featured photos posted on MySpace after the crash.

One showed Binkerd holding a beer bottle. Others had her wearing a shirt advertising tequila and a belt bearing plastic shot glasses.

Binkerd wasn't doing anything illegal, but Balash said the photos hurt her anyway. She was given more than five years in prison, though the sentence was later shortened for unrelated reasons.

"When you take those pictures like that, it's a hell of an impact," he said.

Rhode Island prosecutors say Lipton was drunk and speeding near his school, Bryant University in Smithfield, in October 2006 when he triggered a three-car collision that left 20-year-old Jade Combies hospitalized for weeks.

Sullivan, the prosecutor, said another victim of the crash gave him copies of photographs from Lipton's Facebook page that were posted after the collision. Sullivan assembled the pictures — which were posted by someone else but accessible on Lipton's page — into a PowerPoint presentation at sentencing.

One image shows a smiling Lipton at the Halloween party, clutching cans of the energy drink Red Bull with his arm draped around a young woman in a sorority T-shirt. Above it, Sullivan rhetorically wrote, "Remorseful?"

Superior Court Judge Daniel Procaccini said the prosecutor's slide show influenced his decision to sentence Lipton.

"I did feel that gave me some indication of how that young man was feeling a short time after a near-fatal accident, that he thought it was appropriate to joke and mock about the possibility of going to prison," the judge said in an interview.

Kevin Bristow, Lipton's attorney, said 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.

"The pictures showed a kid who didn't know what to do two weeks after this accident," Bristow said, adding that Lipton wrote apologetic letters to the victim and her family and was so upset that he left college. "He didn't know how to react."

Still, he uses the incident as an example to his own teenage children to watch what they post online.

"If it shows up under your name you own it," he said, "and you better understand that people look for that stuff."

Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Link (http://www.msnbc.msn.com/id/25738225/?GT1=43001)

Wow...personally I don't have a problem when idiots drive the nails into their own coffin, I mean comon, you post stupid photos like that after you committed a crime, and you expect it not to bite you in the ass? Idiot!

So, should MySpace and Facebook be used in the Criminal Courts as evidence on the defendant character and whether or not they're remorseful?

So, should MySpace and Facebook be used in the Criminal Courts as evidence on the defendant character and whether or not they're remorseful?

Evidence of defendant's character is generally inadmissible during the trial phase anyway.

Evidence of defendant's character is generally inadmissible during the trial phase anyway.

Well what I gather from the article, it's used during the sentencing phase. I could be wrong though.

Well what I gather from the article, it's used during the sentencing phase. I could be wrong though.

yes, however at that point guilt is already established and a judge is deciding an appropriate penalty. At which point he largely can use whatever he wants to make that determination.

yes, however at that point guilt is already established and a judge is deciding an appropriate penalty. At which point he largely can use whatever he wants to make that determination.

Ahh k.

Well luckily for me, I have nothing damning on my MySpace or Facebook.

*waits for Anonymous to put damning things on my MySpace and Facebook*

*waits for Anonymous to put damning things on my MySpace and Facebook*

If you get a dog they can't blow up your van.

If you get a dog they can't blow up your van.

Used to have a dog, had to put him down two weeks ago. Doubt Anonymous is going to be afraid of a puppy.

This seems like "gotcha" to me. It makes me wonder about the ethical provenance of the judge and the lawyers involved. If the defendant or witnesses MySpace profiles can be used as sentence inflammation, than why can't the profiles of those doing the lawyering and the sentencing? Can you see where this could wind up? What a potential mess.

Also, OP?

Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Not that this ever gets enforced, but if by some random chance it was here, who would then be the dumbass? ;)

If the defendant or witnesses MySpace profiles can be used as sentence inflammation, than why can't the profiles of those doing the lawyering and the sentencing?

Because they haven't been convicted of a crime.

Because they haven't been convicted of a crime.

That we know of -- or they've just not been caught.

I understand the principle, but it seems unnecessarily vindictive. If we can't use someone's past actions to convict them if those actions are irrelevant to the crime in question (such as a rape victim's mode of dress or perceived promiscuity), why's such information admissible in the sentencing phase?

Dumbass.

Not that this ever gets enforced, but if by some random chance it was here, who would then be the dumbass? ;)
The Irony! It burns!:D

I understand the principle, but it seems unnecessarily vindictive. If we can't use someone's past actions to convict them if those actions are irrelevant to the crime in question (such as a rape victim's mode of dress or perceived promiscuity), why's such information admissible in the sentencing phase?

Because they're entirely seperate things. What I mean is this. In order for the state to convict me of robbery, it must prove, beyond all reasonable doubt, that I committed each and every element of the crime of robbery. It must prove that I:

1) took the property
2) of another
3) through use or threat of use of force

Thus the state must PROVE each element of those. So, how is the fact that five years ago, I committed the crime of robbery in any way relevant to showing that in THIS instance I took the property of another through use or threat of use of force?

It doesn't. It's in no way relevant. The law doesn't recognize that the mere fact that I committed a crime in the past in any way demonstrates a propensity to commit those crimes (exceptions for sexual assaults and child molestation aside). Thus the fact that I once before committed robbery doesn't help in any way to prove those elements.

On the other hand, on the issue of sentencing a judge has discretion to include a wide range of factors, including how remorseful the defendant appears. If the defendant is not remorseful, does not show that he recognizes his actions as wrong and feels bad about, then he may deserve a higher penalty than another defendant who does.

Same reason why people who plea guilty generally get lesser sentences than those who are convicted of the same crime. Because the willingness to admit wrongdoing, to show remorse, and readiness to be held accountable counts for something.

as for why can't bad acts of a lawyer/judge be used, they can, just in a different way. Bar/bench oversight committees exist for a reason, and if a lawyer or judge acts in ways that demonstrate their unfitness for their job, they may well find them out of it.

A picture is worth a thousand words after all. Hell, the picture of me sitting on my motorcycle without gear on could be used to say that I'm a reckless person when in reality I always ride with gear. Pictures could be interpreted any way someone wants them to be, and that just doesn't seem right to bring into the court of law.

It doesn't. It's in no way relevant. The law doesn't recognize that the mere fact that I committed a crime in the past in any way demonstrates a propensity to commit those crimes (exceptions for sexual assaults and child molestation aside). Thus the fact that I once before committed robbery doesn't help in any way to prove those elements.


It really should. Statistics on recidivism bear that out. The law is an ass.

Because they're entirely seperate things. What I mean is this. In order for the state to convict me of robbery, it must prove, beyond all reasonable doubt, that I committed each and every element of the crime of robbery. It must prove that I:

1) took the property
2) of another
3) through use or threat of use of force

Thus the state must PROVE each element of those. So, how is the fact that five years ago, I committed the crime of robbery in any way relevant to showing that in THIS instance I took the property of another through use or threat of use of force?

It doesn't. It's in no way relevant. The law doesn't recognize that the mere fact that I committed a crime in the past in any way demonstrates a propensity to commit those crimes (exceptions for sexual assaults and child molestation aside). Thus the fact that I once before committed robbery doesn't help in any way to prove those elements.

On the other hand, on the issue of sentencing a judge has discretion to include a wide range of factors, including how remorseful the defendant appears. If the defendant is not remorseful, does not show that he recognizes his actions as wrong and feels bad about, then he may deserve a higher penalty than another defendant who does.

Same reason why people who plea guilty generally get lesser sentences than those who are convicted of the same crime. Because the willingness to admit wrongdoing, to show remorse, and readiness to be held accountable counts for something.

I see, so as long as your performance convinces the judge that you're remorseful, you'll be sentenced accordingly? I guess the need to look for precedent makes itself known with that fact in the hopper. I don't want the defendant's ability to act and the judge's turn as the Academy Awards panel combining to get someone a lighter sentence than he deserves.

It really should. Statistics on recidivism bear that out. The law is an ass.

Statistics which I'm sure you'll link us to, right? No, wait -- you're Hotwife.

Nevermind.

Neo a question, if you will tolerate my ignorance for once.

Do not some Criminal cases have maybe testimony from people giving character references?

Neo a question, if you will tolerate my ignorance for once.

Do not some Criminal cases have maybe testimony from people giving character references?

Yes, they do. And if that seems to counter everything I said before, let me explain. Character evidence can be admitted for two purposes. One to indicate that the defendant probably acted in conformity with his bad character, and committed the crime, and second introduce evidence as to bad character in regards to honesty, to show he might not be trustworth on the stand.

Now I previously said a defendant's bad character can't be used to demonstrate conformity, so allow me to add three addendums:

1) the character of a criminal defendant can not be put in issue by the prosecution

2) the defendant is always free to put his own character in issue

3) however once he does so he opens the door to subsequent evidence by the prosecution.

Lemme put it this way. I am a prosecutor who is trying to have a guy convicted of beating his wife. I have a witness who is ready to testify that this defendant has a reputation as a violent and abusive drunk, and it is in the opinion of my witness that the defendant is dangerous. I also have evidence that this individual had previously been convicted for battering his spouse


What can I do with that witness? Absolutely nothing. What can I do with the evidence he was already convicted? Absolutely nothing.

As a prosecutor I can not place the defendant's character in issue. I can't instigate that, I can't allow the inference that because someone thinks the defendant is a "bad guy" he's guilty of a crime. I can't show that because he committed the same crime in the past, he probably committed it now.

But if the defense counsel calls a witness who testifies "defendant is a great guy, he would never hurt his kids or his wife, and is a loving husband and father, and has a reputation as being a good and honest man", he is absolutely free to do so.

Why can't the prosecution put on character evidence but the defense can? Because our system is pro defense. The defendant can use anything just about that makes it appear that he might not have committed the crime. The prosecution has to prove that he actually did, and the mere inference of being a bad guy isn't enough. But the inference that he's a good guy might be enough to show that maybe he didn't. And that's enough.

But if the defendant does that, as a prosecutor do I just have to suck it up? Not exactly. I said the prosecution can't place the defendant's character at issue. But in this example...I didn't. He did. He called his character witness, which he's utterly free to do, but in doing so, he made his character an issue, I can now respond, and I can do that two ways:

1) I can bring my own witness to testify that he is in fact a bad guy. I couldn't do that before, but he made his character at issue

2) I can also go up to his witness and say "you testified that it was your opinion that he was a good and loving husband. Were you aware that he was previously convicted for beating his wife? No? Does that change your opinion now?"

The issue about honesty is....a bit more complicated.

*snip*

Thanks Neo, much appreciated.

He looks like a newfag anyways.

He looks like a newfag anyways.

Wow. Not a very communist attitude. Kinda frat-boy-like, actually. What does it matter what he looks like?

Wow. Not a very communist attitude. Kinda frat-boy-like, actually. What does it matter what he looks like?

Could AP finally be showing his true colours?

Ahh k.

Well luckily for me, I have nothing damning on my MySpace or Facebook.

*waits for Anonymous to put damning things on my MySpace and Facebook*
even better, I don't have a MySpace or Facebook account.

Not that this ever gets enforced, but if by some random chance it was here, who would then be the dumbass? ;)
well, it wasn't rewritten, published nor redistributed. the credit was still given to the Associated Press...

the only arguable thing is if posting it on the internet falls under broadcasting... :p

well, it wasn't rewritten, published nor redistributed. the credit was still given to the Associated Press...

the only arguable thing is if posting it on the internet falls under broadcasting... :p

Anyone here know if that's been ruled on yet?

If Neo is The One, I SUMMON NEO ART, the Other One!

Well I'll answer the question to the question, as to whether it has been published....what do you think this is, exactly, if not publication?

Well I'll answer the question to the question, as to whether it has been published....what do you think this is, exactly, if not publication?

Well, I think it is, which is why I warned the OP about quoting the article complete with its warning about not reprinting or rebroadcasting it just might be a bad idea.

I was asking if there had been any major suits or precedents showing that quoting something like folks do here is in fact a breach of law.

In my own opinion, I think it would be a very easy argument to win that this is either publication or distribution. That's fairly easy.

The other problem however is U.S. Code Title 17 Section 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Emphasis added.

In other words, while the work is under copyright, and the publication here almost certainly qualifies as a publication, it is in all likelihood under the fair use defense exception to copyright infringement

In my own opinion, I think it would be a very easy argument to win that this is either publication or distribution. That's fairly easy.

The other problem however is U.S. Code Title 17 Section 107:



Emphasis added.

In other words, while the work is under copyright, and the publication here almost certainly qualifies as a publication, it is in all likelihood under the fair use defense exception to copyright infringement

So, the only thing I have protecting my ass from a lawsuit is the "Fair use" law, otherwise the author and owner of the article can sue me even though I never tried to take credit for it, or try to make a profit off of it?

Also, you got a t'gram from me Neo.

So, the only thing I have protecting my ass from a lawsuit is the "Fair use" law, otherwise the author and owner of the article can sue me even though I never tried to take credit for it, or try to make a profit off of it?

As a general rule, yes. A copyright holder has exclusive rights to distribute and publish his material. If you publish someone elses material, you violated their copyright, namely, you violated their exclusive right to do so.

The fact that you didn't do it for profit may be a matter for damages, but doesn't mean you didn't do it.

Unless, of course, it's fair use.

Neo, another question if you will allow.

So far we have talked about criminal court proceedings, now if we were to go into civil court proceedings, such as child custody cases, divorce cases or even someone suing someone over some damaged property then could either side bring in character testimonies without the defendant needing to bring their character as an issue?