I have always wondered this. Can you? I mean could something you say on a board be used as evidence against you in court? I don’t see how? How does the court know you were kidding around or serious? See what I mean?
Your diary can be used against you, your letters to your stalking victim can be used against you, why not your message board posts?
The trick is, they need to be able to associate the posts with you. If you, Wildest Bill, are posting from some anonymous hotmail account and never say anything that might associate your posts with your real life, they would probably not find out about them.
But if they do, they certainly can be used in court.
As for how the court would know if you were joking or not, that is why there is testimony and cross examination. You could in your defense call Satan to testify how you were joking in your message board posts. For example.
*Originally posted by douglips *
[quoteAs for how the court would know if you were joking or not, that is why there is testimony and cross examination. You could in your defense call Satan to testify how you were joking in your message board posts. For example. [/QUOTE]
Boy I could hear that now. “Satan will you swear to tell the whole truth and nothing but the truth?” And he snikers and then says “sure no problem”. 
I’ve always assumed that message boards track people by their IP addresses; I’ve seen moderators on other boards ban people who created dummy accounts just so they could rant at people.
My basic rule of thumb is, never put anything on a computer that you don’t want anyone to find.
Something said on a message board, like something said in a bar, is hearsay - that is, it’s an out-of-court statement, offered as evidence to prove the truth of the matter asserted in the statement.
In general, hearsay is inadmissible. There are several exceptions to the hearsay rule – for example, a statement against your own interest, or an admission, is admissible.
The theory in making hearsay inadmissible is that a fact-finder – a jury, usually – can listen to a witness testify, and judge for themselves if that witness is telling the truth or just joking around. But if the jury hears second-hand what someone out of their presence says, they can’t reliably gauge the truthfulness of the statement.
But some statements are, by the circumstances in which they’re uttered, thought to carry with them particularized guarantees and indicia of trustworthiness. For example, a statement made for the purposes of medical diagnosis is admissible – the person is thought to be unlikely to lie to a doctor, when the doctor’s correct medical care depends on accurate information. A statement made in shock or surprise as the result of some startling, sudden event is admissible, as it’s thought that a speaker wouldn’t think to dissemble under such quick time pressure.
A message board’s contents would have to pass two tests, in my view: the statements made therein would have to fall into a recognized exception to the hearsay rule… and the message board itself would have to have “particularized guarantees and indicia of trustiworthiness.” In other words, the proponent of the evidence would have to show it was very likely the person in question that made the posts; if the message board didn’t have password control, for example, it’s unlikely that posts purportedly made by someone could be admitted against them…
- Rick
Ever see the IP: logged at bottom of every post?
If they could somehow prove that you were the one that posted the message, then I imagine it could be used as evidence, whether you were kidding or not. The difficult thing is proving that it was you. For example, this message board used a cookie that stores your user info so that you don’t have to log in every time to post. If someone was to use the same computer after you (assuming you have this option turned on), they could post as you. All you have to do is get a computer expert to explain this to a jury and voila! evidence no longer valid. However if they have videotape of you at the computer with the given IP at the given time, then you may be in a bit of trouble.
Basically, I’m sure it could be used. I don’t think, however, that it would be the ONLY evidence. If it coincides with other evidence, then it could end up being the final nail in the coffin.
Bricker-
IANAL. Please help me - is it really hearsay?
A conversation in a bar is hearsay because you have to ask someone who heard the conversation to testify about it, right? I.e. if you can’t get the person who said it to admit it in court, you might just get a bystander but they can’t testify because they just heard the person say it, they aren’t the actual person.
However, a conversation on a bulletin board is recorded. I think a more accurate analogy would be a tape of a conversation in a bar. Would the tape be admissible? Would it be hearsay?
Your concerns about authenticating the statements would be valid, of course. But, it could be possible to find evidence on the person’s computer which would help to that end.
It really is hearsay.
Hearsay is not prohibited just because it involves someone else and not the “actual person,” the speaker – it is prohibited because the fact-finder can’t hear the statement themselves and judge the credibility of the speaker.
Hearsay is “A statement made out of court and not under oath which is offered as proof that what is stated is true.” (Black’s, 1985); “…a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (Fed. R. Evid. 801©)
There is a “catch-all” exception to the hearsay rule, which provides that a statement not specifically covered by the hearsay rule, but having equivalent circumstantial guarantees of trustworthiness, will not be excluded if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and © the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
- Rick
Bricker:
I beg to differ. Not every statement made on a message board is hearsay. If a posted statement is not offered as proof of the assertion, it isn’t hearsay.
For instance, suppose I post something defamatory, along the lines of “Joe Smith is a syphillitic gorilla who eats baby chicks and easter bunnies for breakfast.” In an action for libel, someone (the board administrator, say) could testify that I had posted this and it would not be hearsay. Why?
Because the witness wouldn’t be offering my statement as proof that Mr. Smith has a particularly nasty social disease, is abnormally hairy or has strange eating habits. Instead, the witness would be testifying that I had actually posted these words.
I don’t see that hearsay would apply any differently to message boards than to any other sort of communication.
I think Frank has it right. Certainly anything on this board is admissible in any libel action, since it’s proof of libel. That’s the most likely reason there’d be any court case.
Posts on the board probably would be admitted as a way of proving intent. If, for instance, you were charged with attempted murder, a post saying, “I’m gonna kill that bastard” would probably be allowed. The prosecution would argue that they are only showing your state of mind. It’d be no different from taking your diary or other statements written down or spoken before witnesses.
Now, as P. Mason has proved, merely saying you want to kill someone is not proof you are a murderer (with Mason, it was usually the opposite 
). Posts on a bulletin board would be pretty flimsy evidence on their own, even if you could connect them with a particular person.
Bricker - How does the FBI’s Carnivore software and keystroke recording hardware fit into this equation? It doesn’t seem logical that the FBI would spend this much time, money, and effort to implement Carnivore or break into private residences to install keystroke capture hardware if the evidence gathered would be of dubious admissibilty.
Use as evidence in court, and use to base investigation on are two different things. If I say “I’ve been manufacturing crank and selling it out of my basement for the last 3 years”, I doubt that anybody would be interested in hauling me to court with THAT evidence. However, it might very well get the police interested in what I’m doing in my basement. BTW, this is obviously hypothetical - I don’t even HAVE a basement …
I don’t see how you could sue someone for libeling your user name. How is it hurting your reputation from a mysterious user name.
Example:
Poster(A) flames another poster(B) in the pit by saying he is liar, thief and child molestor. Couuld poster(B) sue poster (A) in court and have a case? I don’t see how because how is the damaging remark ever really going to hurt poster(B) in real life since it is just a mysterious user name?
Now some lawyer may come with the BS “mental anguish” claim that nobody talks to poster(B) anymore or everybody is mean to poster(B) because of the libelous remarks poster(A) said about them. But I don’t see how any jury(no matter how dumb)could find for poster(B) the plaintiff. But poster(A) would still have to pay his or her legal fees(I am sorry I couldn’t resist.
Sometimes, reading these boards is like listening to a conversation among clones of Short-Term Memory Man.
Or like those of someone living backwards in time, like King Arthur’s wizard Melin–whoops, sorry, I meant Merlin . . . .
Frank,
I always said that hearsay was a statement offered for the proof of the matter asserted. You are quite correct that in order to be hearsay, the statement must be offered for the truth, not to show that the statement was made, not to show a particular state of mind, and so forth. As I re-read my first sentence, I see that I kind of glossed over that point, implying that anything said on a message board is hearsay, and I certainly didn’t mean to do that.
- Rick
Yes, you absolutely could be sued for defamatory postings on message boards. One could establish the elements of libel by showing that Poster X had posted a false statement designed to bring someone else into disrepute. The elements of libel could be easy to establish.
What you are describing, Wildest Bill, is a lack of damages. For instance, someone could libel me on these boards, could even commit libel per se by alleging I was a felon or suffered from some scrofulous disease, yet I would not sue because it wouldn’t be cost-effective. That is – yes, you’ve been libelled, but you’ve only been damaged $100 worth. It isn’t worth pursuing.
Frank where did you get the $100 figure or is it just an arbitary amount that you came up with?
Just out of curiosity - how much of an issue is the screen name? How much would it up the ante on a libel suit if I dug around a bit and revealed your real identity along with the libelous accusation? Suppose you used your real name for your screen name, like a few people do. Would how hard I had to dig be an issue? It seems to me that stuff on a message board still doesn’t count for much, since it seldom does anything to anybody’s reputation outside the community actually represented by the board, but IANAL.
Just arbitrary. I just used that to point out that a)damages have to be proved and b) litigation has to cost-effective to warrant pursuing a claim.
Ahhh - thanks! That’s the part I was missing. Even your definition
had me confused, because I thought you could still introduce the statement if there was documentary evidence of it, independent of a witness. That is, if you don’t have someone on the stand testifying as to the contents of my speech, but instead had a record of my speech, that would be good enough.
For example, if my diary says something like “I have three nipples” I thought that the DA could say “People’s A, your honor, the defendent’s nipples are clearly three in number, he said so himself in this here diary.” I would have though that would be admissible.
From what you are saying now, it sounds like that would be inadmissible, and you’d have to get me on the stand and ask me directly how many nipples I have.
However, if I were to say “Sometimes Rudy pisses me off so much I want to kill him” in my diary, that would be admissible because it demonstrates I have a state of mind inclined to be pissed off/murderous towards this person? Is that admissible just on its own or does it have to be in the context of testimony? For example, do you have to have Sgt. Murgatroid on the stand and ask “Did you find anything in the defendant’s dresser?” and “Would you read from this diary you found, People’s A, the highlighted text?”
Thanks for the legal education. You see, mine consisted solely of Perry Mason.