Next week the U. S. District Court of California will issue the sentence for Lori Drew, the MySpace “cyberbully” who was convicted of violating the MySpace terms of service when she created a false profile. [See my article, Think Twice Before Going Undercover.] In that piece I talk about some of the considerations for the investigator who is tempted to fabricate an identity on a social networking site in order to gain access to a user’s otherwise private profile.
Here’s a legal issue to mull over. Perhaps this applies in other states, but in California, in criminal cases, the criminal defense investigator or prosecution investigator can’t interview a potential witness without first “clearly identifying himself or herself.” This is found in California Penal Code 1054.8:
1054.8. (a) No prosecuting attorney, attorney for the defendant, or investigator for either the prosecution or the defendant shall interview, question, or speak to a victim or witness whose name has been disclosed by the opposing party pursuant to Section 1054.1 or 1054.3 without first clearly identifying himself or herself, identifying the full name of the agency by whom he or she is employed, and identifying whether he or she represents, or has been retained by, the prosecution or the defendant. If the interview takes place in person, the party shall also show the victim or witness a business card, official badge, or other form of official identification before commencing the interview or questioning.
(b) Upon a showing that a person has failed to comply with this section, a court may issue any order authorized by Section 1054.5.
A violation could lead to the exclusion of the evidence obtained from that interview. Isn’t the investigator attempting to “interview, question, or speak” to a witness when the investigator accesses the witness’s non-public social network profile? The private profile requires the participants be accepted as “friends” and is a mouthpiece for the account holder to speak to her selected audience. The investigator who disguises his identity to pry open that witness’s cyber door could risk the exclusion of any evidence gathered through that pretext, as well as picking up a misdemeanor.
Add this recent Philadelphia Bar opinion to your ethics folder on private investigators creating false profiles on social networks. http://is.gd/HT4p
Depends is correct. It all depends on the court you are in. Attorneys can use case law from other states to suggest the admissibility of this type of evidence, but it falls on the state law you are in and what the judge will allow. Best suggestion to all is check with the local courts and see what the criminal and civil judges allow in their courts.
I agree with Jeremy on this. This case is a mess.
Well, it still depends. Look at P.C. 1054.1, it pertains to information provided to the defendant by the Prosecuting Attorney. It’s regarding their discovery obligations. Look at P.C. 1054.3 it pertains to the information provided to the prosecuting attorney and its rules are imposed upon the D.A. in that section. So if the information was obtained by the Defense Investigator from the Defendant or any percipient witness PRIOR to the D.A. providing the discovery (because they’re oh so fast…NOT) then I don’t see this section applying.
Now obviously impersonation and pretext are two different balls of wax. The whole myspace case is a MESS. It should have been dismissed at the pleading stages, and that Judge if he doesn’t rule on the Defense motion to dismiss the Indictment (filed during trial) the appeal is going to be ripe.