You go to a party, your friend takes a pic of you drinking. He posts it on his page, over which you have not control in regard to the privacy settings.
ETA: And the default level of privacy (which I’m sure a greater % of people change than you think anyway) isn’t so private.
They ask to be friended.
It only has to be proved “beyond a reasonable doubt.” Not “beyond all possible doubt.” When I served on a jury, this was carefully explained to us. One can imagine all kinds of possible scenarios, but are any of them reasonable?
What I’m taking away from this is that Facebook can indeed be used to charge you with things (and cops really don’t have anything better to do), but if you have any brains, you’ll challenge it in a court of law and probably win because the evidence is far too circumstantial.
GESancMan, from the story in the OP the fool kid accepted the police request for friending. They didn’t present themselves as police, however, which makes me wonder about THAT aspect of the whole mess - aren’t police required to identify themselves as such, when they are operating in an official capacity?
No, that’s a myth. Cops are allowed to deny being cops even if you ask them.
When I attended the University of Idaho there was a gal who would cruise facebook pages and students would get in trouble for underage drinking. I can’t remember what her position was but she worked for the dean of students.
I don’t recall any of those students getting into legal trouble though.
I don’t know if the evidence is too circumstantial. Do you know of any cases where there was a prosecution on this that was thrown out for insufficient evidence?
I was talking about what the legal types have been saying in this thread - maybe “circumstantial” is the wrong word. I meant what Procrustus was saying about authenticating the photographs - it sounds like they are not the prosecution’s best, most reliable conviction-getting evidence.
Yes, but I don’t know what Procrustus’s authority is for making those statements. Is that just something he believes, or does he have evidence that people brought to trial on the basis of these pictures won’t be convicted?
This is true.
But a Facebook picture can certainly serve as probable cause. And other people in the picture can be identified, subpoenaed, and required to testify as to the events depicted in the picture. So while it’s true that a picture, standing alone, with no foundational testimony for its admission, cannot serve as the basis of a conviction, it’s also true that the Facebook picture can lead to the admission of legally sufficent evidence to sustain a conviction.
When I was practicing law, Facebook didn’t exist. So no, I’ve never tried it. But it doesn’t seem to me to be an insurmountable task. In [url=“http://www.cofad1.state.az.us/memod/CR/CR080160.pdf”]State v. Pressly*, the court admitted pictures found on a MySpace page over the objections of the defense as to foundation. It does not appear to be impossible, then, at least in Arizona.
I searched for awhile to find a single case of someone being convicted with this type of evidence, and could not find one. That corresponds to my understanding of the rules of evidence and protections for people accused of criminal acts. Sure, it’s “my opinion,” but not without 20+ years of experience in the field. A photograph of what appeared to be a crime, without more, just wouldn’t support a conviction. The biggest hurdle is that the photograph is not even admissible evidence without a witness.
There are other difficulties if the officer didn’t seize the “beer,” smell the alcohol, or otherwise establish what was being possessed.
Bricker, I don’t think we disagree. With additional evidence or witnesses, a photograph could be very powerful evidence.
The “other people” are likely to have some fifth amendment rights to refuse to testify, but I suppose they could be offered immunity if the prosecutor really wanted to get the target.
Regarding “admissions” on the the facebook page, I’m not asserting it would be impossible to get that into evidence, but I sure think it would be an uphill battle. How could I prove that the words on this page purportedly authored by you were in fact typed by your hands? My kids play around with their friends’ facebook pages all the time. I don’t know how a court could find a facebook posting reliable evidence of a defendant’s statements. Maybe if you got technical and somehow established which IP address entered the post, that would satisfy the court.
Correct – but the witness simply needs to be someone who was there, and can testify that the photograph accurately depicts the scene. The prosecution can force anyone (except the accused!) to take the stand and answer those questions.
Well, yes, there are difficulties, but they relate to weight of evidence. The accused can certainly argue that the substance in his beer can was not beer, but that’s something the jury can accept or reject.
Put another way: imagine a case in which the evidence is a the photo, properly authenticated by someone who says, “Yes, I was at the party, it was at such-and-so location, and this picture is a true and accurate representation of the party at that moment.” The jury convicts, and the accused appeals, claiming insufficiency of the evidence.
Is that record legally sufficient to sustain a conviction?
It’s been done many times – child porn convictions are often based on precisely that sort of evidence: proving that particular content came from a particular PC.
Now, as a matter of practicality, it’s hard to imagine a prosecutor spending the time and effort to prove computer forensics to win a misdemeanor minor-in-possession case.
But it’s certainly legally possible.
Except that the State must prove their case. A more common example is cocaine. You can’t convict someone for possessing cocaine without a lab test to prove that the substance is, in fact, cocaine. Even if the defendant said it was cocaine, and believed it was cocaine. It still has to *be *cocaine, or there is no crime. So, before the defendant ever has to say, “hey, that’s not really beer in there,” the prosecution has to establish that it really was beer in there. Usually, that’s simply done by a cop saying he arrested the kid with a beer in his hand the the substance had the appearance and odor of alcohol. I’m not saying you’d need a lab test (although I’d argue that if I was the kid’s lawyer—alcohol free beer looks a lot like real beer).
Objection!
Calls for facts not already in evidence.
Sure. But cocaine isn’t sold commercially. If it were, and someone were holding a tin of Sno-Pop Powder Power, it would likely be a permissible inference for the finder of fact to conclude that there was actual cocaine in the package.
You’d certainly be free to argue the alcohol-free beer theory. But I’m saying that on the record, a reasonable jury could find that the elements of the crime were met. Not saying that they would. Saying that they legally could.
What happened? Did the sheriff actually charge him with anything?
It was not a legal matter, but a few years ago, an underage American Idol contestant was quietly dropped between the auditions and the Hollywood rounds. His Facebook (or MySpace?) page showed numerous photos of him holding beer cans and bottles of rum, plus photos of beer-can pyramids and shrines of empty rum bottles. It wasn’t made an issue of; he just wasn’t seen again after the auditions. If it had been a photo of him holding a beer, he might have been okay, but his page made it look as if his whole life revolved around alcohol. (Heck, maybe he was too hungover to show up for Hollywood week!)
daughter caught on myspace with beer bottle in her hand what can be done school wont budge