Connecticut Supreme Court Says no Error in Admission of Facebook Photos at Probation Hearing — State v. Altajir

[Post by Venkat Balasubramani]

State v. Altajir, SC 18706 (Conn. Supreme Ct.; Jan. 3, 2012)

Altajir was involved in an automobile accident while she was under the influence. One of her passengers died. She was sentenced to five years in jail and five years of probation. The accident occurred in 2004 and she was sentenced in 2006. There were numerous conditions attached to the probation. After she got out (early), in 2009, she was involved in another accident. While she was not under the influence, she did not have an ignition lock device on her car and she had not restored her driver’s license. She admitted she violated these conditions of her probation.

At a later hearing, the state argued that Altajir was a “marginal probationer.” In addition to the fact that she hadn’t obtained a job, hadn’t furthered her education, and didn’t do much community service, the state sought to highlight her nonchalance by putting a slew of Facebook photos in front of the judge. It argued that:

[the defendant was] worshipping at the altar of alcohol and debauchery and lewd behavior. And why is that significant. It’s significant because the message didn’t get sent, and this individual refused to accept it.

The trial court noted that her Facebook photos had played a role in her initial sentencing and the defendant “has the audacity to go back on Facebook and show herself in the condition of being intoxicated.” The defendant addressed the court but did not deny the photos’ veracity. Defense counsel made an objection to admitting the photos, but although some of the photos were eliminated, the judge considered 36 photos. The court terminated probation and sentenced the defendant to three years in jail. Altajir appealed, and the appeals court said review of the issue was not preserved and the claimed violation was not of constitutional magnitude, so it did not merit reversal.

The Connecticut Supreme Court said that while strict evidentiary standards apply to the determination of whether someone violated their probation, in deciding to revoke probation or sentence a defendant, a court can take a broader category of evidence into account. The test is whether there is a high probability that “misinformation infected the [trial judge’s] decision.” While there was some discussion about the possibility that the date the photos were uploaded may not necessarily be the date the photos were taken, there was no evidence that the events depicted in the photos occurred after Altajir served her initial sentence. Instead, the court focuses on the fact that the defendant did not unequivocally deny the veracity of the photos (as to the dates, locations, etc.). The court says that while the evidence of reliability would have been insufficient at trial, the photographs had the minimum indicia of reliability to be admitted at a probation hearing.

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This case deserves a prime spot on Professor Goldman’s list of cases where people get zapped by social media evidence. As the court notes, the Facebook evidence was taken into account by the court in the initial sentencing. Altajir nevertheless did not keep her Facebook profile clean. She also does not demonstrate much awareness of Facebook’s privacy settings or how photos of her would be viewed by others.

On the other hand, the court does not give enough credence to the fact that social media evidence has reliability issues, particularly when it is being used to show things like dates and places. The photos in question were uploaded after the initial sentencing, but the events depicted in the photos may not have occurred on the date they were uploaded. Some of the photos were labeled “old photos.” The other problem is that the photos could have been uploaded by someone else or the defendant may have simply been “tagged” in the photos. The state did not present any evidence as to “how [the] photographs had been acquired, who could view the defendant’s Facebook profile or how Facebook’s features governing publicity and privacy functioned during the relevant time period.” The court even says that the images were “purportedly viewable on the defendant’s Facebook page.”

[As a sidenote, Altajir is the granddaughter of Mahid al-Tajir, a United Arab Emirates man with a net worth of $4.3 billion.]

Previous post:

It May be Best to Shut Down Your Facebook Account While You are on Probation — State v. Altajir.”

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