A happy-go-lucky series of Facebook posts by a person who claims to be socially paralyzed by depression.
Daily Twitter posts about the state of current affairs by an elder alleged to be isolated from the world by a domineering caretaker.
Texts with sexy photos to the person accused of stalking, sent by the accuser.
These speak to state of mind. Forensic psychiatrists and psychologists are the logical experts to weigh in, by virtue of training and experience. Not techies. Not Facebook “friends of friends” and certainly not a public follower. (Attorneys, take note.)
The writing’s on the wall, I mean internet. Increasingly, you, as a forensic mental health expert, will be asked to consider the state of mind of a litigant based in whole, or in part, on online behavior.
Assume as true that opposing counsel will try to exclude, or weaken, your conclusions with an argument that you relied on material that’s medically irrelevant, hearsay, even inadmissible. Fruit of the poisoned tree.
Doctor, absent social media material, what would be your opinions? Long before that question is posed, back when you’re first rendering findings and conclusions, consider the question and tuck it away. That in mind, whether the social media is admissible isn’t your concern as a forensic expert witness. If you’re asked to assume the legitimacy of the social media as true, you must.
Smart opposing counsel will try to exclude, or weaken, your conclusions with an argument that you relied on material that’s inadmissible. Fruit of the poisoned tree.
Testifying About Your Findings on Review of Social Media
Doctor, how do you know the social medial documents are real? You are required to answer, but the answer isn’t “because….” The usual answer is “I was asked to assume it as true. It isn’t my purview to determine what is or is not “real” (this isn’t a diagnostic statement.)
Steps you can take: Work with the attorney pre-depo about the appropriate response to the entire line of questioning within Rules of Evidence, and law on expert witness testimony. The courts have struggled about what constitutes legitimacy in social media “evidence.” One thing is certain, “Proving” the social media is reliable, and not the result of tampering is for the tech expert. Your only concern is the significance of the content as it applies to your psych assessment.
Social Media Itself
The new Sub Rosa. Screen captures and printouts of social media posts are the new sub rosa video, but much harder to prove. Images of those alleged screen captures or code that doesn’t include a date stamp, can invalidate the “evidence.” It isn’t your bailiwick to speak to the reliability of the material, but you find yourself grilled about it anyway. A smart attorney will, at the very least, ask you “Doctor, absent social media material, what would be your opinions?” Consider carefully/confer with the attorney as discovery proceeds, not to influence your testimony, but to anticipate opposing party inquiry.
Social Media Images
I worked on a case where a social media post and photograph contradicted alleged claims of psychiatric damages. (Details withheld for confidentiality.)[2] This was long before Fed. Rules 902(13) and (14)[3] were written. The psychiatrist’s opinions relied, in (large) part on the social media screen shots and photo. The case settled. Opposing counsel didn’t question the authenticity of the social media material. That was a stroke of luck, and only luck, for defense.
Of course, anything you are asked to “assume as true” you can consider, including a social media post, just as you would doctor notes or police reports. However, it wold be naïve to ignore the pitfalls in such instruction for you. Strong, well -founded forensic opinions weigh the strengths and integrity of what you have considered. An IME, testing, medical records are generally accepted as reliable sources underlying defensible opinions. Contrariwise, anything characterized as hearsay is useless, or is it?[4]
Recommended reading from the ABA Litigation Section is “Admissibility of Social Media Evidence” by Josh Gilliland (2013).[5]
Courts on the Path (Un)travelled
A few interesting cases tackling the question of admissibility standards for social media address if it is hearsay, or should meet the same standard as, say, a letter, not to mention email (associated but not the same issue.) Note, these cases aren’t the last word, only a starting point. The Supreme Court hasn’t yet addressed social media; that will be an interesting day.
Not hearsay, admissible, in People v. Oyerinde (2011).[6]
Yes hearsay, not admissible, Miles v. Raycom Media, Inc. (2010) (citing Fed. Rule of Evidence 801.)[7]
Yes, Social Media admissible US v. Browne (2016)[8]
Right now, at judicially-measured light speed, Courts are establishing case law about social media. Forensic psychiatrists and psychologists who are asked to consider social media “evidence” are well-advised to conduct, or review, legal research..
Beryl Vaughan consults to forensic psychiatrists and psychologists about professional practices, marketing, and small business operations.
[2] I am neither a lawyer nor a doctor. Case details have been changed to maintain confidentiality while the issues are consistent.
[3]Federal Rules of Evidence, see www.uscourts.gov/sites/default/files/evidence-rules-procedure-dec2017_0.pdf
[4]Judgments cited in footnotes to this article are based on complicated and different facts. All statements in this article are the result of research by a non-lawyer and errors may occur (necessary disclaimer.) Legal Eagles, see citations as footnoted.
[5] Gilliland, Josh (2013). Admissibility of Social Media Evidence, The Journal of the Section of Litigation (American Bar Association). Vol 39, No. 1, Retrieved from https://www.americanbar.org/publications/litigation_journal/2012_13/winter/the_admissibility_social_media_evidence.html (2/24/18)
[6] People v. Oyerinde, (2011) Mich. App. LEXIS 2104, at *26–27 (Mich. Ct. App. Nov. 29, 2011). [[See full transcript at http://publicdocs.courts.mi.gov/Opinions/Final/COA/20111129_C298199_51_298199.OPN.PDF]
[7] Miles v. Raycom Media, Inc., 2010 U.S. Dist. LEXIS 122712, at *7–9, n.1 (S.D. Miss. Nov. 18, 2010), As cited in Article at Footnote 3.
[8] United States v. Browne, 2016 BL 276680, 3d Cir., No. 14-1798, Aug. 25, 2016 [See full text at http://caselaw.findlaw.com/us-3rd-circuit/1746849.html]
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