November 02, 2010
It May be Best to Shut Down Your Facebook Account While You are on Probation -- State v. Altajir
[Post by Venkat]
State v. Altajir, AC 31375 (Conn. Ct. App. Sept. 14, 2010)
Defendant (Altajir) was involved in an accident in 2004, and pleaded no contest to one count of operating a motor vehicle while under the influence and one count of misconduct with a motor vehicle. As part of her plea agreement, she was sentence to jail for one year, and probation for five years. The court imposed a variety of conditions on her as part of her probation. Among other things, she was required to: (1) use an ignition interlock device, (2) attend school or obtain employment full-time, (3) perform community service, (4) not operate a vehicle without a valid license, (5) abstain from violating laws, and (6) refrain from leaving the state without permission.
After serving her prison term and while on probation, she was involved in another (minor) accident. The police investigation of this accident revealed that she was operating the motor vehicle which she was driving without an ignition interlock device and without a driver's license. She was hauled into court for a probation revocation hearing and at the hearing, she admitted to violating these two conditions of her probation (operating a vehicle without a license and without an ignition interlock device). The court continued the matter for disposition. At the disposition hearing, the State sought to have the defendant's probation revoked and have the defendant serve out the remaining four years of incarceration. The State put forth evidence that the defendant violated her probation as she admitted to in the revocation hearing but also in a variety of other ways. Among other things, the State sought to admit several photographs that were posted on defendant's Facebook page which "indicated that she had left the state without permission." The court admitted some of the photographs over the defendant's objections that they were cumulative and inflammatory - in admitting some of the photos, the court states:
I'm looking at these pictures, and all I can think of is, where is the remorse.
The court imposed a term of three years incarceration.
On appeal, defendant raised a variety of procedural arguments (that she did not receive fair notice that the "uncharged violations" of probation would be a factor in the sentencing hearing and that the state should have been required to prove these violations by a preponderance of the evidence). She also raised the issue that admitting the Facebook photos violated her due process rights because the photos were not reliable since they were undated (i.e., there was no evidence that the photos were taken while she was on probation).
The court finds that defendant failed to preserve the latter argument, and it's therefore only reviewable if it's an error of constitutional magnitude. The court finds that it is not an error of constitutional magnitude.
Not being a lawyer who practices in this realm, I don't have a sense of whether the court's ruling on the Facebook photos is correct as a matter of criminal procedure. Courts seem to often admit profile photos without much of a look into their authenticity. (See, for example, the case discussed in this post: "MySpace Evidence: Maryland Appeals Court Allows Circumstantial Authentication.") The timing of the photographs would have been important, but the appeals court's discussion doesn't have enough specifics to get a sense of whether the trial court even looked into the issues of authenticity or reliability with respect to the photographs. Either way, one thing that struck me is that this isn't the first time the defendant's Facebook photos were used against her. As the court notes, defendant's "Facebook profile and accompanying photographs were taken into account when determining the defendant's sentencing and probation agreement for [the initial violations]." Ouch.
I always wonder in these cases how the state obtains access to the photos in question. If defendant's Facebook profile was set to public and her entire profile (including photos) were freely searchable, then she has no one to blame but herself. Interestingly, I came across a post that mentions a growing trend that as a condition of probation, probationers are required to be Facebook friends with their probation officers (mentioned in this article). When you consider all of this, maybe it's best to shut down your Facebook or MySpace profile while you are on probation, at least if you are not going to able to comply with your probation conditions?
As a side-note, the bulk of the social networking profile criminal cases used to be MySpace cases. Facebook cases are more and more becoming a part of the mix now.
"Facebook Is Not The Place To Brag About Your Alleged Act Of Vandalism" (Smoking Gun) (Nov. 2, 2010)
"Facebook Friending leads to Jail" (Discovery News) (Aug. 27, 2010)
"Courtroom Technology Tips From a Tech-Savvy Judge" (ride the lightning) (Oct. 27, 2010):
I mentioned to the judge that a Wyoming judge had told us during a CLE that, as a condition of probation, anyone with a Facebook page must agree to "friend" his or her probation officer with no restrictions as to what the officer can see. To my surprise, that is apparently beginning to happen in Fairfax County has well . . . .
Posted by Venkat at November 2, 2010 04:43 PM | Evidence/Discovery