Lawyer question - Frank Ettin, et al.

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Jim K

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From time to time people post on this and other forums about legal problems or confrontations with law enforcement personnel.

Since we all know, or should know, that nothing on a web site can be considered private, and the actual name of the poster can be obtained with a warrant, just how are posts on a web site viewed in law? If I post that I am violating, or intending to violate, the law, can my post be used as basis for an arrest and conviction? Would any further evidence be needed, or does my post constitute, in and by itself, a confession to a crime? Would the seriousness of the crime be a factor? I am certain that someone saying he is planning another 9/11 would result in a greater effort to arrest him than if he were to say he is planning to mail a letter with insufficient postage.

This is not about "they are listening" paranoia. I am sure that the moderators and everyone on this site would advise the proper authorities of some posts, while they might not do so with others. Nevertheless, posting on a web site is a very public act and any poster should recognize that his words can be viewed by millions of people.

But just how much do those words mean in a court of law?

Jim
 
Jim K said:
...

But just how much do those words mean in a court of law?

Jim
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It will be interesting to follow the responses to this question, not as legal advice, but just for entertainment, if nothing else.

I suspect 'those words' ultimately mean whatever some judge and/or jury thinks they mean in a court of law.
 
most people who post crap do so because they think they are anonymous. it's easy to trace a post because of the IP address assigned to your physical location--it's like a street address.

i have seen some schmucks on liberal blogs try to out the names and addresses of someone who they disagree with with the hopes of causing trouble. it's like spike lee passing along the personal info and wrong address of a different "zimmerman" during the trevon episode. spike spoke too soon. if the "mistaken" parties got hurt--old spike would have gotten spiked.:evil:
 
Jim K,
That's a good question . . . and it's one with a great many variables to consider before an answer can be reached. I can't give you a blanket "they're worth X," because there are so many variables. That said, I'll walk you through some of the things that will impact the value (or threat level, depending on whether you're a prosecutor or a defendant) such statements on the internet might have. Please bear in mind that I'm largely going from straight memory here, as I do not have time to cite and document sources for all of the following:

1. Any statement that I might post on the internet is, technically, hearsay. Hearsay is defined as "an out-of-court statement that is offered in court as evidence to prove the truth of the matter asserted."
a. out-of-court is pretty self-explanatory;
b. but what is "offered for the truth of the matter asserted? --> Offering a statement for the truth of the matter asserted is offering the statement as evidence of what the statement itself claims. For example, if I say to Frank Ettin, "At 1:48 p.m., I was standing in line at Bank of the Ozarks," then having Frank testify that "Spats told me that at 1:48 p.m., he was standing in line at the Bank of the Ozarks" in order to prove that I was actually standing in line at Bank of the Ozarks at 1:48 p.m. is offering the statement "for the truth of the matter asserted." There are actually a number of reasons that one might offer a statement, and not all of them are "for the truth of the matter asserted." Does that make sense?
c. If not, or if it needs clarification, then let me offer an example where the statement is offered for something else. If I say to Frank Ettin, "At 1:48 p.m., I was standing in line at Bank of the Ozarks," and the prosecutor has a credit card receipt & time-stamped security video showing that I was at paying my (exorbitant) bar tab at Bar of the Ozarks, 25 miles from the Bank, at 1:46, then he might want Frank to testify to that statement, not to show that I was actually at the Bank, but rather to show that I lied to someone (Frank) about where I was.​
2. Because statements on the internet are (obviously) not made in court, they're covered by hearsay rules, and the hearsay rule has lots of exemptions and exceptions. So there's going to be a big legal shoving match to see whether the statement gets in. If it's a damning statement, the prosecutor wants it in, and the defense wants it out.

3. Whether the statement gets in or not depends a lot on what the actual statement is, and who makes what arguments. One of the standard exemptions (or maybe it's an exception?) to the hearsay rule is "admission by a party opponent." If I (as a defendant, and a "party opponent" to the prosecution) have admitted to something like "I killed my brother with a hammer" to a third party, then that third party can testify to that statement as evidence that I actually killed my brother with a hammer, because that's an admission by a party opponent. The theory is that nobody admits to stuff like that unless it's true.

4. Alternatively, it could be admissible under an exemption (exception?) called the "statement against interest." It's "against my best interests" to admit to having killed my brother with a hammer*, so I wouldn't admit it unless it was true, right. Again, admissible. If, on the other hand, my brother is the one who shows up to testify to this statement, then perhaps the prosecution can offer it to demonstrate my altered mental state, or my tendency to lie, in which cases it might be admissible, just not for the truth of the matter asserted.

5. Then there's the problem of authentication. The prosecution, since it wants the evidence in, has to "authenticate it." That means that the prosecution would have to prove that the statement came from the defendant's computer at a time and place where the defendant would have been likely to be present, and a few other things like that. Put a decent computer tech on the stand and it should not be too hard to do.​

In assessing what statements on the internet would be worth in a court of law, we'd have to know a lot more about the case or the crime charged, the elements of same (to determine relevance of the statement), what the internet statements made were . . . but I hope I've been able to enlighten you as to some of the things the lawyers take into account in looking at these.

*For the record, I have never killed my brother with a hammer. He is alive and well, thank you very much. This was only an example.
 
Jim K said:
...Since we all know, or should know, that nothing on a web site can be considered private, and the actual name of the poster can be obtained with a warrant, just how are posts on a web site viewed in law? If I post that I am violating, or intending to violate, the law, can my post be used as basis for an arrest and conviction? Would any further evidence be needed, or does my post constitute, in and by itself, a confession to a crime? Would the seriousness of the crime be a factor?...
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Let's say that anything posted on social media, including discussion forums such as THR, absolutely is fair game and can be used in criminal or civil litigation.

How it can be used depends of course on the exact circumstances. But posts can be, and have been used to show state of mind, such as a reckless or malicious disposition, as evidence that a poster was planning to do something, or as evidence that a poster actually did something. They can also be used in an investigation to help find and secure other evidence.

As part of some consulting work I've done recently, I have reason to know that in at least one Sheriff's Office a deputy has been assigned to monitor certain gun forums. I also know from volunteer work I've done with our local police department that several officers regularly check various social media and also receive and follow up on tips from the public regarding possibly questionable postings on social media. I can't imagine that other law enforcement agencies aren't doing the same thing.

Indeed I've taken continuing legal education classes in which the monitoring of social media, and the effective use of evidence obtained from postings on social media, was a core topic. And see this article headlined "Bay Area prosecutors increasingly using social media posts in criminal cases" from the 16 August 2013 edition of the Contra Costa Times:
PLEASANTON -- A teenage driver originally accused of vehicular manslaughter now faces a murder charge in the death of a bicyclist, partly because prosecutors say he bragged on Twitter about driving dangerously.

His case is part of a growing trend of social media posts being used as evidence against suspects, authorities said Friday.

....

As suspects feel compelled to post their misdeeds online for audiences to see, investigators have taken advantage, using the online quasi-confessions to bolster their cases, Bay Area prosecutors said.

In San Francisco, a cyclist in March fatally struck a 71-year-old pedestrian in a crosswalk after speeding through three red lights in the Castro District. Chris Bucchere, who eventually pleaded guilty to felony vehicular manslaughter, received a stiffer charge after he posted his explanation of the crash on a cycling group's website....
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Spats McGee has provided a good outline of the complexities of dealing with hearsay. An important thing to remember is that, as Spats has alluded to, there are many exceptions to the rules excluding hearsay. So for example, hearsay may be used as evidence of state of mind or to show prior inconsistent statements casting doubt on credibility.

In addition, even if hearsay might not be admissible, it may still be helpful in the course of an investigation and could help lead to the discovery of admissible evidence.
 
Are there resources to direct such queries to? Does the NRA have an office that handles unjust legal action? Does it make sense to have a sticky of Second Amendment lawyer contact info?

Don't know if it's better for 'The High Road' to have links to resources or to stay out of it entirely.
 
it's easy to trace a post because of the IP address assigned to your physical location--it's like a street address.
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Sorta. When the music industry was suing file sharers they only had about a 50% success rate on tying an IP address back to a person. There are several things thing come into play there:

1. ISP logs. A lot of times IP's are rotated around between customers - only servers receive a "static IP" that doesn't change. If the ISP doesn't keep good logs of who had what IP what what time, or if the post is old enough that the logs have been purged, then they won't be able to match it.

2. WI-FI and NAT. General only one computer in your house has an actual public IP address - your router. All other computers communicate through that one and get NAT addresses. Where that comes into play is with wireless. If you're posting from a wireless hotspot while out and about the only IP the the receiving website will see is the IP of the router you were connected to. This is also very much reason to keep your router secured and not publicly accessible. You don't want posts being made by a neighbor connected to your router to show up from your own account.

3. Intentional obfuscation. There are services such as TOR (https://www.torproject.org/) that setup a network of computers such that your communications to a web page are bounced around through several intermediaries before arriving at their true destination. At each hop a layer of encryption is removed so that no individual computer along the way knows what the information is or where its going until it gets to an "exit node". Posts made by people using such a service are - for the most part - untraceable.

In recent months though people using TOR for illicit activities have been caught using other methods. For example, a website they access may install a Trojan that loads onto the computer, and then communicates back with a remote server outside of the TOR network to cue authorities in that this computer connected to an illicit site.

Long story short, no IP tracing isn't 100%, but for the most part I'd still be careful about what you post on any internet site.
 
It's not just use of social media that can be used against you but your emails are also fair game.

A good example is the IRS scandals involving Lois Lerner. We know she went as far as to find out what means of electronic communition to use that there would not be any record of. Then the hard drive on her computer was "damaged" and the hard drive was destroyed along with all of the emails on it.

I frequently email my Congressmen mostly on topics that I object to involving Obama or the rogue, out-of-control Government agencies actions and policies. I have no expections of privacy and fully expect that the Federal Government is collecting and storing them (and everyone else's).
 
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harrygunner said:
Are there resources to direct such queries to? Does the NRA have an office that handles unjust legal action? Does it make sense to have a sticky of Second Amendment lawyer contact info?...
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That's pretty much beyond the scope of what we can reasonably do here. Sometimes advocacy/RKBA groups will help if they decide that getting involved furthers their advocacy mission. Sometimes local groups will be able to suggest local lawyers. Some groups like the Armed Citizens' Legal Defense Network provide resources to members.

mgmorden said:
...When the music industry was suing file sharers they only had about a 50% success rate on tying an IP address back to a person...
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Remember that an IP address isn't the only way to track down a poster. Various social media sites, and posts on those sites, can provide other information which can help identify a poster. And if a person is a "person-of-interest" other information about that person can help track back to his postings on social media.
 
Any statement that I might post on the internet is, technically, hearsay.
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No, Not Correct. A party's prior statements are not hearsay. See F.R.E 801(d)(2) If you are being prosecuted your prior statements will be used against you.

Indeed, any lawyer worth his salt will stitch together any statements you have made to make you look as horrible as possible. Think about the guy whose baby died when left in his car. He wouldn't be in the situation he is if he hadn't been Googling "how long can you leave a child in a car in summer before it gets too hot?" However, that is something a lot of parents probably want to know. Similarly, talking about "killing power" or those [insert group] is unlikely to be helpful to your self-defense claim when a member of that group is dead on your doorstep.

If you elect to **** the above statements are not an issue, and you can fill in the record if you wish to once you have an opportunity to consult with your attorney and have seen plaintiff/prosecutor's evidence.
 
Sebastian the Ibis said:
No, Not Correct. A party's prior statements are not hearsay. See F.R.E 801(d)(2) If you are being prosecuted your prior statements will be used against you....
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That's under the Federal Rules. Under some state evidence law such statements might be considered hearsay but still admissible under one of the many exceptions. So we're probably getting too much "inside baseball."

The "take home" message is that what you post on the Internet can be used against you in one of more ways.
 
Sebastian the Ibis said:
Spats McGee said:
Any statement that I might post on the internet is, technically, hearsay.
Click to expand...
No, Not Correct. A party's prior statements are not hearsay. See F.R.E 801(d)(2) If you are being prosecuted your prior statements will be used against you.
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You got me on that one. I didn't have time to go digging around in the rules at the time I posted. I realize that there are a number of exemptions and exceptions to the definition of hearsay. That's why I made my comments about admissions by party opponents and statements against interest.
 
I have posted on a few forums over the years. In general I try to keep in mind lets assume it can be recalled some day. Would I be embarrassed by the details if presented in public? In general, I think the answer is no BUT I have a lot of posts. Some written late when tired. Some written quickly. In general I think I am fine. If I had to do it over again, I would probably not have an electronic presence on the internet at all. I know for certain I haven't posted anything illegal because I don't do illegal things. I'm a good citizen and follow the laws. I pay my taxes, vote, and have pride for the nation I live in. If I dislike what I see, I write my representatives and vote for those that I think are the best choices to represent me.
 
Sheepdog1968 said:
...In general I try to keep in mind lets assume it can be recalled some day. Would I be embarrassed by the details if presented in public? In general, I think the answer is no BUT I have a lot of posts. Some written late when tired. Some written quickly. In general I think I am fine. If I had to do it over again, I would probably not have an electronic presence on the internet at all...
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And let's put this in some perspective. All your communications are potentially fair game. Letters you've written, notes to yourself, your scribblings in the margins of books or magazines, other peoples' recollections of conversations with you, all can be used in investigation and/or litigation. In one sense, the Internet, social media and email are no different.

How they are different is, perhaps, a matter of volume. Folks who might have written two letters in a year are posting hundreds of words on the Internet every day.
 
How they are different is, perhaps, a matter of volume. Folks who might have written two letters in a year are posting hundreds of words on the Internet every day.
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This, plus the false sense of anonymity many net users seem to feel. So that often those hundreds of daily words are not so carefully considered as they should be. We see some of that here, moderator efforts not withstanding.
 
In the last (2012) election, I read that a candidate was being dragged over the coals on the basis of a letter he had written to a newspaper in 1965. No Internet then, but apparently a relative had saved the letter and later had a political falling out with its author. It truly seems that nothing ever really disappears (except government e-mails that might embarrass the administration).

Jim
 
Lots of really lengthy and verbose answers here. In short, from a criminal defense lawyer, statements of a suspect regarding criminal activity online will likely result in a enough reasonable articulable suspicion to surveil the poster. Individuals are easy to locate with an IP address. With any corroborating evidence, a Probable Cause search and/or arrest warrant will be sought by the police and issued by a Judge.

Statements of the accused nearly always can and will be introduced in a criminal trial under well-established rules to admit them, or exceptions to the Hearsay rule.

I've represented people that said and wrote some incredibly harmful things to others before or after their crimes, about the crimes - admissions, threats, hostile words, you name it. It always comes in, and is always very aggravating and damaging to the defense.

Words of the defendant = an insight into him/her as a person. If the defendant doesn't testify, then he can't rebut those words or explain them. So it often forces him to testify, which is often a bad idea. If he does testify, then it opens a whole new can of complex worms.

Lesson. Don't do criminal stuff. Having prosecuted and represented criminal defendants for many years, I've yet to meet one that felt his crimes were worth it. And people ALWAYS get caught. It's just a fact - if you commit a crime, you can bank on getting caught. Even if you slip through the cracks, you live a life looking over your shoulder.... no way to live.
 
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The solution is easy. Write so dang much it takes them 5 years to read it all. By then the statute of limitations expires on whatever bogus charge they're trying to hit you with.

"If we're going to submit online postings, we will require a printout of ALL of them to be submitted and read aloud. The first of several semi-trucks full of documents is currently en route..."

J/k....

I have nothing reasonable to add other than some comedy relief.


:)
 
Can I chime in ?

Anything posted on the internet is monitored and stored. It is also searchable.

If anything about you is flagged by LE, they can request (via court order -easy to get) every email, every post, everything you have ever written if there is an association to you by your ids. You don't even have to use your real name as your IP Addr is traceable.

So if you say something, heresay or not, its leave breadcrumbs that LE can follow and certainly get the evidence they need if there is a need to get the evidence...make sense?

Happens every day - you would be surprised how many LE requests come in per day to major companies, internet and other service providers.

Then of course there is the all knowing, all seeing NSA and FBI programs that key in on certain words to give them a "heads up"

Ain't automation grand ? :uhoh:
 
Posted by ohbythebay: If anything about you is flagged by LE, they can request (via court order -easy to get) every email, every post, everything you have ever written if there is an association to you by your ids. You don't even have to use your real name as your IP Addr is traceable.

So if you say something, heresay or not, its leave breadcrumbs that LE can follow and certainly get the evidence they need if there is a need to get the evidence...make sense?

Happens every day - you would be surprised how many LE requests come in per day to major companies, internet and other service providers.
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And every memory stick and note pad and calendar....

And do not forget civil litigation.

I don't know how many people here have ever received a subpoena, but many of them are extremely inclusive; the amount of work required to respond to one can be significant in the extreme; and the risk of missing something can be serious indeed.
 
The FBI came to my office to investigate something once. I can't go in to a great many details but they wanted my servers.

Not backups; not copies. They wanted the physical machines.

I was unable to comply because the machines they wanted no longer existed (they were investigating a case that was a half a decade old).

Kleanbore is right - when they want someone, they'll stop at nothing, and take everything. (As a side note, I learned to be be REAL careful who I bring on for contract labor on a 1099.)
 
I'm not an attorney, and perhaps I go a little further than necessary in being cautious, but I simply operate under the assumption that anything I write online or say on the phone (or even in proximity of a cell phone) is read/heard by parties I do not want eavesdropping. The capacity to record and store information electronically in this day and age means that there is no real need to compress or purge anything, so I assume that every word I have typed, or spoken where a digital device could pick it up, is stored and could be used against me for any reason.

In this current political climate, where people who have more than 3 days worth of food or 2 boxes of rimfire ammunition can be labeled as potential terrorists, it serves us well to be mindful not only of what we say, but of how we say it. Do your best to not only refrain from saying things that could be damaging, but also to speak or write in such a way that your words cannot be taken out of context without the statement becoming totally disjointed (an obvious fabrication).

Call it tin foil hattery if you like, but just remember that anything can be hacked, and technology available to civilians can store 2,000,000,000 bytes of information on something the size of a postage stamp.
 
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