Admissability of THR comments?

[mljdeckard]

More than once I have read caution in here where members have advised; "Be careful what you post in here. It could be used against you in court if you are ever involved in a shooting."

I am asking plainly, if this has ever even come close to happening. Is there any known example in a court transcript where someone's comments in a forum such as this have been read into evidence? A few big reasons they would not be admissable come to mind.

1. It's virtual hearsay.

2. They are impossible to authenticate, that the person who holds the login is responsible for all comments made.

3. Comments made in an open forum like this one, where anyone can enter any ID information they want to without any kind of verification, under the cloak of anonmity, hold no reasonable belief of honesty, and therefore hold no probative value.

4. Archived or copied comments have trouble getting past the "best evidence" rule, which excludes items like photocopies of documents because of difficulty in authentication.

I am among those who have advised people to resist their more 'inflammatory' comments in here because it certainly doesn't do our cause any good, but I am asking those with actual legal experience, both attorneys and various flavors of laypersons to show examples where comments like these have ever been admitted in court.

 

[Arbor]

There are many documented cases of people getting charged with crimes or more severe sentences because of stupid stuff posted on myspace, facebook, etc. I think this usually revolves around pictures posted on the internet, though.

 

[mljdeckard]

I agree, a picture, especially when it can be authenticated; I.E., the gun in the picture is the same make, model, and configuration (and in some cases a full or partial serial #) as the one posessed by the defendant holds much more weight than text.

 

[CoRoMo]

Just last night, a story about a number of people who've lost their jobs, not due to anything they did or didn't do on the job, but because of comments and/or pictures they've posted on their MySpace or FaceBook pages.

Last fall, right here in Colorado, Bob Schaffer was running against Mark Udall. The media dug up the FaceBook/MySpace page for Schaffer's kid and it was damning enough to cause damage to his campaign. Stuff like that is only going to increase and become commonplace.

Not exactly what you are talking about, but I thought I'd add this bit of info about the ramifications of personal comments posted online.

I wonder about some of the members who immediately post their story of a thwarted attack or having to defend themselves. If the judicial system hasn't vetted the issue, I wonder what would be the ramifications of the scenario being detailed online. If they had to testify under oath, and their online comments were contrasted in court with their testimony to show some type of bias, or ill motivations, etc.

I also have my doubts about the probabilities, but eventually it will have to happen somewhere.

 

[rainbowbob]

I'm not an attorney, but I agree with your assessment that such statements would not likely be admissible in a court of law.

However, I'm guessing particularly inflammatory statements and/or public declarations of intent to commit a crime might bring increased scrutiny - perhaps even a personal visit - in order to see if probable cause can be established to justify a search for more typically admissible evidence.

That's assuming the "signal-to-noise" ratio allows for anyone "listening" to sort out any actionable information in the first place.

 

[Rellian]

I don't know that I see the postings as being key, but if used circumstantially in concert with other (if I may...) 'weightier' evidence, I could see it lending credibility to the prosecution's case. I would like to think though that most people would be able to delineate between bona-fide and sarcasm.
But then again;
You have pointed out before MLJ:

"all it really takes is a prosecutor willing to push it, and a judge willing to hear it"

 

[SpecialKalltheway]

while any comments one might post about something illegal they have done may not be the evidence used to press charges and/or convict someone. You never know who is reading them. What if your local sheriff (or even someone else that lives around you that thinks he is john laws last line if defense) is a fan of THR and you post something he realizes you live in his area and he happens to find a reason to investigate you some how after that...

Not saying it is very likely, but neither is it for me to be attacked by an armed individual, and that isn't going to stop me from carrying on a daily basis.

 

[mljdeckard]

I suppose what I am saying is, if I was a prosecutor trying to convict someone, and all I had was some crazy anonymous ranting from a forum like this one, I doubt I would proceed with the case.

 

[highorder]

I don't know that I see the postings as being key, but if used circumstantially in concert with other (if I may...) 'weightier' evidence, I could see it lending credibility to the prosecution's case.

While I was teachcing at WMU, a student was investigated, tried, and convicted based upon posts made on a public forum.

His statements were tracked via IP, and the DA successfully argued that he was the person responsible for the statements made and the actions associated with them.

I have no doubt that what we post here has weight in court.

 

[Rellian]

So even if what I post here is not libel, patently false, or outside the posted rules of the forum I could be convicted for saying it? (Theoretically speaking)



Take THAT 1st amendment!

 

[Phatty]

I suppose what I am saying is, if I was a prosecutor trying to convict someone, and all I had was some crazy anonymous ranting from a forum like this one, I doubt I would proceed with the case.

If the only thing the prosecutor had was the forum post, than you're probably right that they wouldn't proceed. [Edit: I should add a disclaimer here. If your "ramblings" are detailed enough and involve a serious crime, then a prosecutor could try to push a case with only your post.]

However, if they have other evidence, there's nothing really stopping them from using the posts in addition to that other evidence in order to get a conviction. You could always assert in your defense that the post wasn't from you, or that you didn't really mean what you wrote, but that's just a fact question for the jury to resolve.

I would say it's generally not a good idea to write something online that could be construed as an admission of illegal activity.

 

[rdhood]

As one who has worked in computer security, digital signatures, and nonreputiation of digital contents, I agree with your assessment:

A few big reasons they would not be admissable come to mind.

1. It's virtual hearsay.

2. They are impossible to authenticate, that the person who holds the login is responsible for all comments made.

3. Comments made in an open forum like this one, where anyone can enter any ID information they want to without any kind of verification, under the cloak of anonmity, hold no reasonable belief of honesty, and therefore hold no probative value.

4. Archived or copied comments have trouble getting past the "best evidence" rule, which excludes items like photocopies of documents because of difficulty in authentication.

It used to be that everyone on the internet would claim that someone not using their real name were "anonymous" users, and slam on them for it. My assertion is, and always has been, that everyone in forums such as this are essentially anonymous. It matters not what I call myself in a forum.

Now, if an employer wants to hold something against you from facebook or my space, that is their right. I have a picture out there on my facebook page, and it pretty clearly is me! Nonetheless, I don't post anything even mildly offensive or disconcerting on that page. You would not even know I owned a gun from reading my facebook page. I think it best, in this world, to be civil even when giving someone a verbal slam. Taking THR IS the right thing to do in most cases. You can disagree and call someone an idiot without actually saying "you idiot!!!"

While I was teachcing at WMU, a student was investigated, tried, and convicted based upon posts made on a public forum.

His statements were tracked via IP, and the DA successfully argued that he was the person responsible for the statements made and the actions associated with them.

He had a bad lawyer. How many of us have our computers at home logged in all the time. How do you know that this is ME.... rdhood... typing and not my wife or other person in my house? MSP authentication, for example, requires that the user input a PIN before sending or receive mail that cannot be repudiated. That way, mail sent from a workstation or IP MUST have belonged to the person with the PIN. Else, the person broke protocol and gave his PIN to someone else. The student had a poor lawyer of the DA was able to prosecute a student based on IP. Now, if this was for mp3 sharing, you could argue that the owner of the IP is responsible for everything going on at that IP. We would have to know more about the case. An IP address, though, is NOT equal to an identity.

 

[KBintheSLC]

Even if forum comments are not submitted as evidence, we all know that manipulated public opinion has and does dictate outcomes in controversial trials. Even if they don't submit your comments to the jury, that same jury might see those same comments which were submitted to them through other sources... AKA the evening news. Todays media does not use any digression when speculating... especially about a gun case.
The jury does not live in a bubble during the course of the trial.

 

[MisterMike]

Finally something I can speak to with a bit of authority. (if anyone wants to know why, PM me and I'll explain.)

Folks, don't delude yourselves. A statement on the web easily passes muster from an evidentiary perspective. Authentication and the best evidence rule are not significant impediments. The greater issue is perhaps the fact that one cannot be convicted on an uncorroborated confession. But, if the corroboration is out there and you've made an incriminating statement on line, you could be facing serious problems.

First, an out-of-court statement by a party-opponent (for instance, a defendant in a criminal trial) is not considered hearsay since the purported declarant is in court and free to rebut the evidence.

Yes, there's an argument to be made about authenticity, but we routinely subpoena the records of ISPs and website owners, and seize targets' computers. Almost without exception, there is a trail of cookie crumbs that allow us to trace posts to an individual computer. And, of course, if you've confessed to a crime serious enough to warrant that type of an investigation, you can bet that it won't stop with just an examination of computer records. Potential witnesses will be interviewed, search warrants will be executed, and other law enforcement resources may be brought to bear.

All of this likely isn't going to happen if you confess to letting your grass grow too tall, but it does occur on a fairly regular basis in connection with felony investigations. Being on the law enforcement side of things, I'd love it if more of the targets of my investigation would talk about their crimes on line . . . it would make my life a lot easier.

 

[Hungry Seagull]

I dont do facebook, myspace or any of the 120+ social sites. Nothing.

No worries here.

He said, she said, post this, post that.. blah.

In passing while typing this post I had a mental image of a prosecuter backing up a 18 wheeler filled with the entire internet on paper intent on tying one person's ISP Subscription all the way through to a particular post in question.

 

[highorder]

He had a bad lawyer. How many of us have our computers at home logged in all the time. How do you know that this is ME.... rdhood... typing and not my wife or other person in my house? MSP authentication, for example, requires that the user input a PIN before sending or receive mail that cannot be repudiated. That way, mail sent from a workstation or IP MUST have belonged to the person with the PIN. Else, the person broke protocol and gave his PIN to someone else. The student had a poor lawyer of the DA was able to prosecute a student based on IP. Now, if this was for mp3 sharing, you could argue that the owner of the IP is responsible for everything going on at that IP. We would have to know more about the case. An IP address, though, is NOT equal to an identity.

I can't speak to the quality of his legal counsel. He may have not had the representation that he needed. I can tell you that, as others have suggested, the online content was NOT the bulk of the Prosecution's case. IIRC, the DA was able to sell the idea that no one else was at the residence when the posting was done, and it DID relate to substantiated criminal activity. That's about all I recall.

 

[Phatty]

So even if what I post here is not libel, patently false, or outside the posted rules of the forum I could be convicted for saying it?

You won't be convicted for making a statement. The OP was concerned about making statements where you admit to some illegal action. In other words, will you be convicted of some crime using your forum posts as evidence that you committed the crime?

So, say for example a crazy dude here posted a comment like, "I'm so pissed off at the anti's that I'm going to stab Sarah Brady in the heart as she walks out of her house tomorrow morning," and then the police find Sarah dead on her doorstep the next day with a knife in her chest. The detectives have nothing to gone on until they stumble across a posting on THR that seems to predict the exact crime the day before it happened. So they subpoena THR and its ISP to get the IP address for the username of the crazy dude, which they find is registered to a Mr. Smith. The detectives go to Mr. Smith's house to arrest him and find that he lives there by himself. Mr. Smith denies the crime and says that somebody must have broken into his house and used his computer to log in and post that comment. Well, let's see how the jury responds to that story.

 

[Rellian]

Phatty,

I get that, and in truth anyone who would post that kind of a rant has got some issues to work out and probably should be watched. The thing that gets me is if precedence is being set (and according to some posts it seems to be) that statements made in a setting like this forum are evidentiary beyond circumstantial, what happens when the powers that be begin to change the definition of criminal? Now before anyone calls me paranoid, I am not saying this WILL happen... only that it could.
It's not something I will be losing sleep over, but at the same time, there have been those in this thread who raise the idea that something said in a moment of.... frustration,... disbelief,...sarcasm,.... even wry-wit... COULD hold evidentiary weight in a court. Something about that smacks me as wrong. This is most likely because I find myself living in an overly PC county with a slightly legislative judiciary (I am speaking of the branch generally here).... and one wonders why I don't like the implications of the thread?

 

[Phatty]

Rellian,

Your concerns seem more along the lines of being put on a "list" somewhere by the government and getting harrassed/persecuted because of something you post. That's not that outlandish of an idea either considering the recent reports from the DHS and others.

 

[CoRoMo]

So is the scenario something like this...

Some THR member brags about finding a box of pineapple grenades in his grandfather's attic. His thread is swiftly closed, but was read by ATF who then contacts the webmaster here requesting the personal information for that member's account. The staff here sends over all info in triplicate. The email address/IP address are used to track the individual and warrants are served.​

How possible or probable is that?

 

[Hungry Seagull]

Not possible when the profile contains incorrect information.

Now the IP broadcasted by my router and proxy can be captured and banned or otherwise turned over to the authories to track down... but they dont have the NAT or Private IP's of these particular machines. To get it they will have to subponea my ISP.

 

[Rellian]

Phatty,

Once precedent has been set it is not much of a leap to apply it to other situations. To reiterate,.... I don't expect anyone to be trying to externally moderate this forum with 'Hate-Crime' standards tomorrow... but the idea that something posted here could bite you in the butt despite it being within the context of free speech (even if perhaps in less than refined taste) is something that does bother me a little.
Part of the OP's original statement was, "could be used against you if you were ever involved in a shooting"......
Nothing there about criminal activity. The idea that we have to be careful about what we say beyond the limits of:

1) Libel/Slander
2) Lying (perjury if you like..) and
3)the rules of the forum

or we may incur the wrath of 'big brother' (to some extent) bothers me.
I do not disagree with the OP's point (as I understand it) or the Axiom 'watch what you say'.... it is good policy for many reasons. But it doesn't mean I have to like (or even agree with) the level of PC regulation that is being foisted upon us every day by some so that they can feel good about themselves and justify their existence

END TRANSCRIPTION



Probably shouldn't have said that last part.....

 

[Phatty]

To get it they will have to subponea my ISP.

You act like this is somehow not possible for the ATF to do, when, in fact, it's done on a routine basis by law enforcement.

I'd say a good defense (if you really were concerned about this) is to put false information about your location in your profile. If the ATF agent reading your post, looks over under your username and sees "Location: Madrid, Spain" they'd probably just say, "well, it's not our problem" and not even investigate further.

But the best defense (if you are dumb enough to broadcast your illegal conduct online) is to use an offshore proxy server so that your IP address can't be easily traced to your posts.

 

[TheOld Man]

I personally know a young lady who posted a picture of herself holding her (only) gun on her Facebook page. She has a CCW.The FBI and a Fed Anti-terrorist force came out and ransacked her house while they kept asking her about her Terrorist Activities until she had a headache. I don't know if she ever got her computer back, she went out and bought another one, uses it just for email now.

 

[Phatty]

TheOldMan,

You left out a major piece of info. Was she Middle-Eastern?

The government probably has some supercomputer with picture recognition software that trolls the internet and flags web pages with pictures of people holding guns in poses similar to those of known terrorists.

However, the most likely reason for this young lady's headache was somebody that wasn't a fan of guns happened upon her Facebook page and "tipped off" the FBI about a possible terrorist.