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The Legal Upside of Memorializing Countless Details of Your Life Online

Last week I wrote here about "The Legal Perils of Memorializing Countless Details of Your Life." These perils were demonstrated when Paris Hilton tweeted and uploading a photo to Twitter in July 2010 about how much she loved her new purse, then claimed in August 2010 that drugs found in an apparently identical purse she was carrying were not hers because the purse belonged not to her but to to a friend. As discussed in this post on Bow Tie Law's Blog (via FutureLawyer), however, tracks left on the information superhighway can go both ways.

Myspace In an unpublished opinion by the California Court of Appeals last week, the court held that the alibi offered by a criminal defendant -- that he was playing poker on MySpace at the time of the crime -- was neither "implausible or bizarre," as argued by prosecutors. BTLB reports that "the MySpace records showed that someone was logged into the Appellant-Defendant’s account at the time of the crime.  The Appellant-Defendant claimed he did not share his account information with anyone."

The MySpace alibi did not end up saving the defendant in this case as the court went on to rule that (a) the specific jury instruction given and at issue was harmless, and (b) anyone could have logged into MySpace for the defendant or he could have logged in from another location.  However, the case does seem to show that in the right circumstances, and with strong enough evidence that one was, in fact, online at the time of the crime (e.g., Chat Roulette, BTLB jokes), the "online alibi" could work for defendants in the future.

As BTLB observes, 

There is a courtroom drama waiting to erupt in a brutal cross-examination over whether someone was on Facebook on their iPhone or at home when the “Social Media” alibi is next offered.  There likely would need to be forensic analysis on both the personal computer and SmartPhone in determining the truth. IP and ISP evidence would likely be used for impeachment or rehabilitation of a witness.  

FutureLawyer adds that "maybe I shouldn't be deleting my search history after all? Perhaps the embarrassment of the sites I visit will be easier to take than a conviction? Decisions, decisions."

Posted by Bruce Carton on September 16, 2010 at 11:19 AM | Permalink | Comments (0)

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