Admissability of THR comments?

[RP88]

for those who may not remember:

There was that story about the Asian kid in Florida who got raided and charged of a few felonies for making threats to kill someone for ripping him on a gun deal and that he expressed curiosity in shooting a school up himself. He posted on this site and on others and made some very vulgar and violence-threatening comments. He got sentenced to prison for a couple months and is no longer allowed to own guns because of the felony conviction.

So yes, depending on what you say or how you may say it, it can definitely be used against you.

But of course, I am very sure that there were other, more admissible pieces of evidence against that kid than what he said here and over at arfcom. For example, the kid had a mental history that could have been compared to Cho's and a few other crazies from the past.

 

[gc70]

Washington Man Arrested for Craigslist Sex-and-Murder Ad

SEATTLE — Seattle police arrested a 24-year-old Kent, Wash., man they say placed a sex-and-murder ad on Craigslist.

The ad indicated a man wanted to have sex with a woman, then kill her.

Vice detectives exchanged e-mails with the man. They made arrangements for him to find the victim Monday at a motel and arrested him when he showed up with a heavy chain and a knife.

Shawn Tyler Skelton faces attempted murder charges. Bail was set Tuesday at $1 million.

A statement alone may not be very actionable, but can be a powerful part of the puzzle.

 

[Keb]

You have to assume that everything you post anywhere, and all emails go thru a government filter.

 

[GRIZ22]

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.
__________________

A prosecutor wouldn't proceed with a case just from forum postings. They are, as you note, circumstantial evidence. Thye can be of some value to a prosecutor though. You have to understand that people get convicted of all kinds of crimes if the prosecutor has enough circumstantial evidence.

 

[george29]

I imagine posting could be akin to wearing a T-Shirt that says, "Kill 'em all, let God sort 'em out." Not illegal, but not smart either.

 

[Loyalist Dave]

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.

In the above case, and in the Florida case with the death threats, it was NOT the computer message alone, nor the tracing that made the post admissable, it was the fact that in BOTH cases, the trail led to a computer where the sole person accessing the machine was the lone individual who was identified via the posts.

In the case of an unsecured machine, i.e. from a library, or a work station where there is not visual record of the person who used the machine, and it could've easily been left unsecured or perhaps was not password protected..., you have to establish more than who should've been the person on the machine.... for court purposes. Employers have a much lower threshold, and could fire you for simply leaving the machine unsecured and open to another person's use.

So in the case of this post, I might be the actual sender, but since there have been numerous cases of security breeches here at work, to include the posting of every employees' social security number (all 1200 employees) to every employees' email..., I am not worried.

LD

 

[hankdatank1362]

Not to mention, mods or people with moderator-esque access may edit your posts to read whatever they wish.

Prove that I said it and not someone else. Without simultaneous keystroke-logging software and a hard-wired video surveillance, no dice.

 

[JCF]

I was recently involved a criminal case in which the lead law enforcement investigator was questioned on the stand in reference to several statements he had posted in an online forum (not this one). The defense argued that the investigator's personal views on a particular subject (as expressed in the online forum) influenced his investigation and led to the defendant being wrongfully accused. The Court deemed the investigator's posts were indeed admissible. The prosecution ultimately prevailed, but it got pretty uncomfortable for awhile.

***edit: just as an aside, many organizations and agencies whose business involves investigation, sworn testimony, etc., have begun to perform pre-employment searches on individuals' internet activity in order to determine if any potentially detrimental information exists. I know of several agencies that also require, as a condition of employment, that their employees refrain from posting potentially inflammatory personal opinion online.

 

[Kleanbore]

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)

No. Let's assume you are no advocating the violent overthrow of the Governement or inciting people to riot.

There are three potential issues a I see them.

One is the possibility that in a criminal trial, relevant statements by the defendant might help the prosecution paint an unfavorable description of the defendant's state of mind in the minds of the jurors. Consider how messages indicting that the defendant intended revenge against someone or favored the idea of shooting certain types of people might affect a case involving a death the defendant said was accidental or a homicide that the defendant contended was justified.

The second is the possibility that statements that contradict what the defendant has told a Grand Jury or what he has testified in court may effectively destroy his credibility in the eyes of a jury.

The third is that the statements may provide a trail to other evidence that may not otherwise have been brought to light.

I am personally knowledgeable of criminal convictions that hinged in part on email records, and many others have been well publicized. Couldn't someone else have logged on? That didn't wash.

 

[JCF]

Prove that I said it and not someone else. Without simultaneous keystroke-logging software and a hard-wired video surveillance, no dice.

True. The problem is that if there is suspicion that a post was authored by a particular individual, and that individual is subsequently questioned directly and under oath as to whether or not it is theirs, denial involves perjury. While it may not be possible to actually prove it, if there is substantial evidence suggesting that the post is yours and you deny it with the attitude "prove it", your credibility and that of the agency you work for is going to be severely compromised. It's not so much an issue I suppose if you are a private party in a matter and you don't care. For anyone whose living is made in the Court however (or anyone who cares about perjuring themselves), this becomes a totally different matter.

 

[mljdeckard]

No one has really addressed the issue of the reasonable degree of honesty in these posts. Certain records are admissible in court under certain circumstances. For example, A hotel ledger is a record which is kept for business reasons, independently of any need to show it in court. It is assumed to have a reasonable degree of honesty, and therefore has probative value. These posts have no foundation of the motives or background of the poster, the court has no way to discern if this is the real intent of the poster, or if the poster is venting some Walter Mitty-esque fantasies online. There is a reason that you are taken under oath in court. What you say OUTSIDE the courtroom may or may not be true, when everyone is in court, you are put under oath to differentiate factual testimony from stuff you say from day to day just to mess with people. These posts are just random babble, and therefore do not hold probative value.

 

[MikeKeyW]

I'd like to here what Mas has to say on this subject. Diarrhea of the finger tips was something not thought of in the early 80's when I took LFI-I & II. I have a feeling that Ayoob would console to err on the side of caution. It's all too easy to say things better left unsaid when someone starts flaming your favorite carry or EBR or you. Humm, I wonder about the picture of me shooting an Uzi in Israel that's my Facebook avatar...
Just my two cents.

 

[t165]

Don't be naive about what is typed (expressed) on these internet chat forums. Comments, sites visited, word searches,...ect have all been used to arrest/convict thousands of United States citizens over the years. Computer evidence is some of the best evidence out there. Just ask the BTK killer, Casey Anthony, Philip Markoff...and thousands more. The internet is a vast worldwide network of computers. Wiping or changing your hard drive and washing your IP may not be enough to distance yourself from links to a crime if you say or do the wrong thing online. How long does your ISP keep internet surfing records? Even proxy server services sometimes keep records including your original IP. LE monitor some sites and concerned citizens are always forwarding messages to LE. Heck, LE has been using computers to set up criminal stings for years...MSNBC has been setting up sexual child predators for years. The internet is a great tool for law enforcement.

 

[Frank Ettin]

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

I am an attorney, and I disagree. First, there are numerous exceptions to the hearsay rule, the most common being an out-of-court statement by a party, even though hearsay, is nonetheless admissible. Hearsay is also admissible to show state of mind.

Second, best evidence and authentication will often not be problems. MisterMike outlined things well in post #14.

...These posts have no foundation of the motives or background of the poster, the court has no way to discern if this is the real intent of the poster, or if the poster is venting some Walter Mitty-esque fantasies online....

You're forgetting that out-of-court statements by a party are admissible under an exception to the hearsay rule. Since you're a party and in court, you will have an opportunity to try to explain that you were merely joking, or venting some Walter Mitty-esque fantasies, or just being a twerp because you thought that the Internet was anonymous. Of course, a jury might not believe you or might not think too highly of those sorts of explanations.

I have seen extensive evidentiary use made of emails. So I wouldn't doubt that forum or blog posts could also be used. In any case one would be ill advised to be indiscreet. The Internet is a public place. We are not having a private conversation. I surely wouldn't count on what you post being inadmissible.

Also, even if a certain posts may not be admissible, they can be discoverable for the purposed of investigation; and they could lead to admissible evidence.

 

[pkoch62]

My rule of thumb has always been "don't post anything you wouldn't want on the front page of the New York Times with your real name attached to it". Seems to work quite well.

 

[memphisjim]

so maybe one day the supreme court may finalize the ar15 vs ak47 debate and the 9mm vs 45acp debate?

 

[Jeff White]

Cases are made from internet activity all the time. I just got a notice in the mail from a police training company advertising their class on making cases from internet activity.

Here are some of the courses being offered:
http://patctech.com/training/training_cyber_predator_child_pornographer.shtml

http://patctech.com/training/training_electronic-storage-device-investigation.shtml

http://patctech.com/training/training_social-linux-network.shtml

http://patctech.com/training/training_internet-crimes.shtml

If you think that your chest thumping posts on gun forums won't come back to bite you if you are ever involved in a shooting think again. Computers are routinely seized during criminal investigations. You aren't anonymous no matter what you think.

Your posts on the internet will carry the same weight as if you were standing in public saying those things. There are plenty of people who have been convicted by things they have posted on the internet. I imagine they thought the same thing many of you do, that it wasn't traceable or admissible.

 

[Trebor]

Rule 1. Never say anything in public you aren't willing to repeat, under oath, in a court of law.

Rule 2. The internet is public.

 

[mljdeckard]

There's a big difference between emails and an anonymous board. It's a LOT easier to tie an email to an individual. I also have taken classes for investigating computer crimes, but they dealt mostly with computer-related crimes, not the public statements someone made which one hopes to tie to another crime. This is why I'm asking.

t165- do you have any specific examples?

 

[Dr. Tad Hussein Winslow]

Fully admissible, as a statement against interest - exception to hearsay - next question!

 

[Funderb]

tupid s**t posted on myspace, facebook,

pictures...
pictures


they are worth 1000 words.
posting comments is one thing.
posting pictures that can be verified in which you are being irresponsible/committing illegal acts is a whole new ball game.

 

[kilo729]

Guys.

I am both Osama Bin Laden, and the Zodiac Killer.

You heard it here first folks. ONE IN THE SAME!




On Topic: Pictures are one thing, that's a good way to get busted with many a thing (e.g. I've heard of college students stupid enough to post pictures of them drinking while underage on Facebook) but text by itself... eh :/

so maybe one day the supreme court may finalize the ar15 vs ak47 debate and the 9mm vs 45acp debate?

Oh god I giggled aloud at this. ^5 to you sir.

 

[mljdeckard]

I'm glad for the comments everyone has posted, particularly those from actual lawyers. (My wife says I'm a pretty good lawyer, I just have to get that formality of law school out of the way.) This is an emerging field and I am going to be paying a lot of attention as the precedents are set. I'm also going to see if I can walk this question past a couple of my CJ professors.

Again, I'm going to go out on a limb and guess that the bulk of any online postings that have bitten someone on the butt involved pictures.

 

[t165]

mljdeckard...the best examples I can think of off the top of my head is the MSNBC show "To catch a predator". Law Enforcement poses as children on the internet chat forums and set up "dates" with adult sexual predators. The typed conversations are then used to prove premeditation to commit a crime. It's a little hard for "joe pervert" to say he just happened to stop by the wrong house when LE has a computer record of the date, time, and address agreed upon for the tryst. Not to mention once they arrest the suspect and seize his personal computer(s) there is probably going to be substantial corroborating evidence. And , as fiddletown outlined, additional evidence incident to the search may very well turn new evidence to additional charges.

Casey Anthony's arrest was in part due to what investigators found on her personal computer. Internet searches concerning "broken neck" as a method of death. The use of "chloroform". The prosecution used these word searches and other computer evidence to support their reasons for arresting Casey Anthony for the murder of her daughter, Caylee Anthony. Whether they can tie all this into a successful prosecution is yet to be seen.

An IP address is not the only thing attached to computer files. Your operating system (at least windows) is individually numbered. Other programs used on your computer may also use exclusive identifying markers that can be traced back to your computer. That is how they caught BTK.

Philip Markoff's demise was because of craigslist personals.

I do not know of a stand alone criminal prosecution of a direct threat made on a internet forum when the parties were using pseudonym names. I'm not saying there isn't one. I haven't done an exhaustive search. An internet search will give you many examples. Also search federal and state case law databases for different opinions of adjudication.

The internet is a relatively new form of communication/commerce stretching across national borders. It poses new problems concerning both criminal and civil remedies. Case law seems to be thin on many issues. There is a civil case dealing with "true threat". It is called the "Nuremberg files case" where some abortion doctors were awarded $109 million dollars. I don't know if the ruling stood or not. I guess I should have researched it more before I made mention but it does explain some of the matters you raised in this thread...at least from a civil perspective.

 

[CoRoMo]

Would you be curious to know...

• how many times/how often the ATF contacts THR webmaster(s) for any reason
• how many times THR has been required to provide information to LE
• how many times evidence from THR has been used in any manner

Conspiracy and paranoia aside, I've often wondered how actively the different LE agencies might pursue stuff posted on sites like this, and how cooperative these sites are when simply asked for information as opposed to cooperating with an issued warrant.

I know, I know... the tin needs to be reinforced a bit. Just wondering. It'd be alarming to find out that there is a filing cabinet somewhere with a CoRoMo folder filed in the 'C' drawer.