Law Enforcement, Social Media And The Courts: San Diego Judge, Attorney Weigh In
February 25, 2014 1:18 p.m.
David Danielsen, Presiding Judge, San Diego Superior Court
Alex Simpson, adjunct professor, California Western School of Law, practicing attorney
MAUREEN CAVANAUGH: This is KPBS Midday Edition, I am Maureen Cavanaugh. When a reckless criminal boasts about crime on Facebook, such as the recent social media becomes a tool to help law enforcement. But when a juror tweets that the defendant did looks guilty it can cause a mistrial or become grounds for appeal. Social media is becoming a double-edged sword in the criminal justice system forcing investigators, church attorneys and judges to come up with a few new safeguards to ensure good arrest and fair trial. Joining me to talk about what enforcement and the codes courts and social media are my dad guests David Danielson and Alex Simpson. Thank you for coming in. Judge Danielson let us start by looking at what you're seeing in the courtroom regarding smart phones, first of all you tell everyone to turn cell phones often the courtroom. Do they do that?
DAVID DANIELSEN: Every time, it's an occasional outbursts and God prevent the judge has their cell phones off.
MAUREEN CAVANAUGH: Do you ask people to leave the room for that or you give them a stern look, what is the consequence?
DAVID DANIELSEN: It really depends on the context, personally I prefer to handle it with a little humor, it's not my fault I express release the relief because of some iPhone because that is embarrassing, that works in some situations but we have got a very tense high-profile cases will be just can't tolerate the interruption. If it's someone in the audience will ask them to step outside fix the phone, if it's one of the participants they will be a stern look and hopefully no repetition.
MAUREEN CAVANAUGH: What about iPads and tablets in the courtroom?
DAVID DANIELSEN: That is entirely up to the individual judge, I think basically you would think of the tablet or a computer as the functional equivalent of a notepad and pen, there's no real prohibition against taking notes or using notes are having a notebook full of information, it's probably less distracting to have all of your material on an iPad, there's no reason why the lawyers use that, I don't know about jurors, as long as it's not something that is wireless or internet enabled, they can use it.
MAUREEN CAVANAUGH: What about spectators tweeting from the gallery?
DAVID DANIELSEN: That is one of the issues constantly with the media, the media will come in and they need to have permission from the court to utilize those types of things, and again judges very on the reaction to those.
MAUREEN CAVANAUGH: Alex, we have heard a lot of stories about people pleading that they have committed a crime or posting it on Facebook pages, can you give us an example of something that you've heard about that?
ALEX SIMPSON: Sure, I think one of the most fit in this extent examples of the last couple of years as there was an individual that California but he had treated a picture of himself siphoning gasoline from the police car that was on the side of the road and obviously proud about his crime, but in terms of building a case against the individual to cut out and imagine a more open and show up open and shut case because this guy had asked Dennis to himself.
MAUREEN CAVANAUGH: I have heard people on a more serious vein of the posting of their Facebook or tweeting that they finally did it, and actually kill the person or kill their girlfriend or boyfriend or something like that, and I am wondering, cannot be used in the court as evidence?
ALEX SIMPSON: Sure, there is no real difference between posting on Facebook or on twitter, or any other social media outlet, and using to somebody on the street or your significant other, or just admitting it to the police, these are just admissions. Admissions that the person may be that may be using as a person, there's nothing specifically different about it and there are differences between the weight of the testimony or the evidence and some of the board traditional methods of getting an omission for example.
MAUREEN CAVANAUGH: Judge Danielso, if a prosecutor wants to submit evidence from Facebook or twitter, what criteria do you determine whether it is admissible?
DAVID DANIELSEN: It's really just a different opportunity to visit the same issues that we have with any piece of written or physical evidence. The change in technology has not change the issues, they simply require us to look at it and make sure that this is authenticated and that is reliable, that it's relevant to the issues.
MAUREEN CAVANAUGH: How do you know for instance I would apparently it I would imagine the defendant said that I just said that, I did meet it, it did I did meet it wasn't true, so something for the jury to decide is that something that is going to be one of your criteria that are decided whether or not that it doesn't?
DAVID DANIELSEN: You need to think of the judge as the gatekeeper, he will say is this something that is authenticated or something reliable or relevant, if so the jury will hear it and the jury makes the decision whether or not it has weight at all one way or the other, in the old days when an individual did not have the benefit of social media, they would say to group of people unhappy I do this and that statement would be offered as evidence, that of the dead is it any different issue as a Facebook post.
MAUREEN CAVANAUGH: What are some of the other ways that law enforcement is using social media to track and suspects?
ALEX SIMPSON: I think as people become more couple with social media it becomes easier and more imperative for law enforcement to look at social media and whatever the person may or may not be doing after a crime has occurred. Just to collect evidence or to feed them down a particular path, I think that is happening more and more often and because social media is becoming more ubiquitous in our lives, I think that is something that you will see more and more as we go further down into technology, that has now become one of the things that police Avon's agencies checkoff on the checklist when they are investigating.
MAUREEN CAVANAUGH: What I have actually heard of is a police the scooter using social media to actually find this site find suspects.
ALEX SIMPSON: That is 72, it's just like any other rescue tool, he is somebody who says this person confessed, then you go interview that person and please do that all of the time, if you see somebody who is talking about a conversation that they had with somebody else on social media, boy I can't believe Brian told me XYZ, it is important you look through social media to find the information.
MAUREEN CAVANAUGH: To think people including suspected criminals think that they have a level privacy of social mini media that is not exist?
DAVID DANIELSEN: It's hard to characterize how individuals feel about what they are doing and whether it is private or not, I think it would be a fair social commentary to say that somebody who thinks things on social media or in private or are private or they are extremely naÔve, that is not a good thing to think it that it's hard to say. It's also going to impact the jurors prudence because prudence is all based on an objective reasonable expectation of privacy, and I think one of the interesting questions that we're going to face as we move forward is do people have reasonable expectation of privacy especially with the generation that really does not respect to their own privacy, a generation up with all the details of their lives minute by minute out into the public stream.
MAUREEN CAVANAUGH: That is interesting and also what happens with a lot of people now that they have developed a habit of using smartphones and tablets almost constant constantly especially if they are not occupied in other ways, how is it that you get jurors in particular to unlearn those habits while they are surfing?
DAVID DANIELSEN: It's a process of education and I have had some interesting conversations with some judges and lawyers from other countries, they are very fascinated by a jury trial system and the beauty don't understand how we entrust the powers that we entrust to jurors, you really did need to get them to understand just what the jurors that we're going to be educating you for the moment that you sit down about what your responsibilities are, and so the direct duties of a juror are laid out very clearly and we try to enforce those many times during the trial and now this aspect of those issues is now front and center, I think we're all very concerned about the intrusion of electronic media into the jury process.
MAUREEN CAVANAUGH: I think a lot of people could understand why the court would not want them to tweet whether or not they think is a defendant is guilty or is this something like that, I think also many jurors may wonder why they can't find out more, why the Google something that they've heard in court that they perhaps don't really completely understand, can you explain to us why that is not allowed?
DAVID DANIELSEN: That really goes to the heart of the jury trial process, our conception of what a fair trial is about is premised on all twelve jurors and the judge hearing the evidence together, the same evidence and having the formal structured process of the court reviewing the evidence and having the rules of evidence and procedure applied, so we are really dealing with a finite universe of information and is all the information that has been deemed reliable enough to act upon in a court of law. Relaxing those rules because of digital access is authorizing a procedure that we would seek the truth suit through some kind of an internet scavenger hunt, that is not consistent with the structured formal process of the court proceeding. But the you find it's hard to get people outside of the circle of juries to understand why they can't find out more about the store spent the here in court?
ALEX SIMPSON: I think it is if all the because it seems to be a matter of course that you use your start smartphone the check about information, and I think we've all had the experience of having an argument with our friends about something and going to Google and fighting it out, that just becomes so common that it is a little bit hard to divorce yourself from it that I think his honor is obsolete correct that we need to make sure that everybody in the courtroom has access to the same information because to have some additional information in the courtroom that some jurors have that others don't or that all of the jurors have the attorneys have not put in front of them that means that we do not know we don't have confidence in the verdict, it happens all the time and we do look at our phones, all the time.
MAUREEN CAVANAUGH: Be just discussed how law enforcement agencies are using social media to monitor suspects, does the court monitor juror social media after hours?
DAVID DANIELSEN: We certainly say that we're going to pay attention to that and if we leave the impression that we have some magical powers to do that, it's probably not a bad thing but the reality is we do not have the technological ability nor do we have the funding to do that. We really rely on jurors to police themselves and I think part of the magic of having twelve jurors is that your teaching all twelve jurors with their response abilities are and even if some of those jurors are going to violate the court orders and do research on Google or Wikipedia or whatever, you killed on the rest of the jurors to recognize their obligations to do their duty and report that Of wrongdoing.
MAUREEN CAVANAUGH: As Alex mentioned is the kind of thing googling information might be the kind of thing that happens with a certain frequency, is that enough to cause a mistrial?
DAVID DANIELSEN: It very well could, especially given the real world context and let which you find out about this, usually that is happen sometime ago, usually it is reported to buy a fellow juror that someone is violating the oath and of necessity is person has felt something is important to discuss and interject into the jury deliberations, and already it may have affected and infected the jury, that would be a very likely scenario in which you would have a mistrial declared the
MAUREEN CAVANAUGH: You both are probably thought about this a great deal as smartphones and tablets keep evolving, you have concerns about the type of technology being developed that may threaten trials as we go down the line? Judge Daniel said you had a very optimistic view, basically the same old stuff in a new package, do you have concerns about how in the future smartphones are going to be even smarter?
DAVID DANIELSEN: I think all of us rationalizing this precious quantity of justice, and thinks human beings really have changed that much, the way in which human beings have expressed themselves in different ways, I don't see technology as the threat and I see the issue as human beings and human behavior and technology enabling human behavior to manifest itself in ways that are undetected, we're going to have to stay awake and alert, think every time that there's a huge leap forward in technology the courts are populated by evil? Older and we need to be awake and be a on top of it. Because you see a tie that we will have to change the rules to allow jurors more access to outside information?
ALEX SIMPSON: I know that it will be difficult to make sure that jurors are minding their peas and cues when it comes to jury activity and behavior, that I hope that juries actually to understand how important it is to make sure that they're following the rules and with regards to social media in general, the use their cell phones and smartphones and I think that there is a lot of opportunity to take another look at some of these rules of evidence or introducing pieces of information to the jury, because social media does act a little bit differently than the traditional statement to a friend or a letter that you have for it and I think that is going to be where you see the most change.
MAUREEN CAVANAUGH: We're out of time, I want to thank you both very much.