on-line words
I'm a little confused. What criminal case could be built where the only evidence is online posts?
Blackbeard - the most likely candidate here would be conspiracy cases, although accomplice liability cases would be pretty common as well. I currently have a felony case, for example, charged solely based on a conversation, father allegedly telling son to do something (shoot a "nuisance" animal who turns out to be neighbor's pet, another THR favorite topic).
If they are going to use something that you have said online they can just as easily find someone that will say you have personally said the same thing to them face to face.
Grizzley - you bet, and they do. Nearly every homicide I have handled, where the person remained incarcerated pretrial, involved the appearance of a snitch who claimed my client told him the details of the crime.
A little more info on the snitch system in the form of a pdf from the Center for Wrongful Convictions:
http://www.law.northwestern.edu/wron...temBooklet.pdf
Fact is, Free speech may be free, but it can cost you. The government can discover your forum names and research your posts (in one recent case, that was as simple as asking the defendant's room mate). The government can and does subpoena posts from Internet hosts.
I am seeing an increase of this type of research by investigators and prosecutors in criminal cases. Are on-line statements admissible under the rules of evidence? Are they or are they not hearsay?
Case by case, but on issues of intent, prior statements may well be admissible. Remember - admissions and declarations against interest are an exception to the rule on hearsay, where a person's statement may be used, when the content of the statement is so prejudicial to the person making it, such as confessing to a crime, that they would not have made the statement unless they believed the statement was true.
I am teaching Federal Rules of Evidence next academic year, and I may include an assignment on on-line speech.
I think this is a lot like t-shirt slogans or bumper stickers - don't put something on there you would not want quoted in court in a shooting. Some agencies have policies regarding this.
For example, if you just stopped your car in the middle of the highway, stomped back and stuck a stainless S&W revolver under the nose of the driver you felt was tailgating you, it does not help your attorney much if you have a "Keep Honking, I'm reloading" bumper sticker on your pickup.
Ask me how I know the answer to that one!