978-1285459059 Chapter 10 Part 2

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4. “Audience as trial observer” has been replaced by the “audience

as trial participant”

iv. New Media and Attorney Activities

1. In that “all the rules that the legal profession relies upon to instruct

lawyer behavior were forged before the emergence of new media”

the judiciary continues to struggle with defining inappropriate

behavior and ethical boundaries regarding this emergent media

realm

a. A short list includes attorneys who have been:

i. reprimanded for posting privileged and prejudicial

material on YouTube and in social media

ii. discovered to have misrepresented their reasons for

extensions and case delay requests from social

media postings

iii. brought to task for posting criticisms of judges,

colleagues, and other individuals associated with

on-going cases

b. A particular area of concern regarding attorney behavior

involves jury selection

i. Using new media search engines, the researching of

jury pool member is:

1. quick

2. inexpensive

3. a way attorneys can obtain a wealth of

information regarding potential juror:

a. socioeconomic status

b. religious affiliation

c. educational background

d. political leanings

e. criminal backgrounds

ii. The effect on the juror selection process has not

been researched but concerns and unknown risks

have been raised:

2. Attorneys cannot just ignore new media as the benefits outweigh

the risks

a. Meeting effective counsel standards frequently requires

attorneys to actively tap new media as a case resource

i. Thus, attorneys currently use online profiles, instant

messaging, and online videos to gather information

about clients, potential jurors, opposing counsel,

judges, and witnesses

b. Using social media as a research tool is now common and

Internet searches are a standard pre-trial case preparation

step

3. Rules of proper attorney conduct have not been clearly delineated

yet and issues may arise such as:

a. Seemingly benign actions such as “friending” someone on

Facebook can be an inappropriate form of contact

b. Lawyer social media postings that might reveal client

confidences

i. lawyers are advised to obtain informed consent

prior to posting material even when based upon

open court factual statements

c. Advertising

4. Crucial elements in determining ethical behavior

a. How information is obtained

b. Whether informed consent is provided

5. The dilemma for lawyers is that failure to explore on-line presence

of clients, victims, and witness may result in findings of

“ineffective counsel” on appeal

v. New Media as Evidence

1. The value of social media based evidence is that it can provide the

best evidence of what an individual was thinking and doing at a

specific time

2. Content obtained from social network sites has:

a. both established and undercut alibis, mental health

defenses, and punitive or lenient sentencing arguments

b. impeached testimony and eyewitness credibility

c. proved strong community roots and positive reputations in

support of bail and pre-trial release

3. New media supplied content has resulted in:

a. increased bail amounts for defendants

b. revocation of supervised release sentences

c. evidence for ‘no contact’ sentence provisions and their

violation

4. Similar to other types of evidence, social media based evidence

must be properly authenticated under the general rules of evidence

a. Yet unlike other evidence, the ephemeral nature of online

digital information requires the preservation of digital

published evidence be conducted differently

i. Preserving online profiles and web pages requires

discovery orders requiring that profiles be frozen

and downloaded

5. In addition, privacy issues related to this content remain unsettled

a. Early privacy laws arose in response to photographic

technology with the privacy boundary set where one

entered public (in public you can usually be photographed

with or without your consent)

b. With new media technology it is ambiguous whether your

online presence is public or not and new media mobile

technologies simultaneously make it possible for virtually

anything a person does in public (and often in private) to be

videotaped, texted, or otherwise made part of a digital

record

c. When and how much of that information is private, who

owns it, and who can acquire it is under dispute

i. An idea of the scope of the issue is given by

requests related to just one new media source, the

digital content of cell phones. Access to

information contained in modern cell phones – the

location of the phones and the content of phone

communications – are constantly requested by law

enforcement and contested in the courts

ii. At this time, the levels of privacy afforded to new

media vary by state

vi. New Media and Jurors

1. By providing easily accessible mechanisms, social media and the

Internet pose tremendous challenges to sealing off courtrooms

from external influences

a. Social media are a direct challenge to a judges’ traditional

role as the courtroom information gatekeeper

b. Juror social media activities have the potential to

undermine the fundamental fairness of judicial trial

proceedings and undermine public integrity for the judicial

system

i. Misuse of social media by jurors has:

1. caused mistrials

2. resulted in juror dismissals

3. triggered contempt findings against

misbehaving jurors

ii. Specifically, jurors have:

1. looked up definitions of legal terms on

Wikipedia

2. viewed crime scenes via Google Earth

3. updated their blogs and Facebook pages

with remarks about proceedings

4. “friended” criminal defendants, witnesses,

lawyers and each other during trials

2. Unfortunately, most of the available information on new media

based juror misconduct is anecdotal and rigorous research is sparse

a. Available juror survey data reports that about 25 percent of

jurors viewed reports on the Internet about their ongoing

trial and about 10 percent had purposely searched the

Internet during a trial to learn additional information

b. When corrective steps are taken the most common judicial

counter measure to such activities are bench instructions to

the jury which are reinforced at various points in a trial

c. A recent pilot study provides mixed messages regarding the

effectiveness of instructions. Suggesting their

effectiveness, many jurors in the study reported that:

i. Although jurors wanted to use the internet and

social media during trials, juror instructions from

the bench not to do so were understood and

effective

ii. A minority of the jurors could not recall receiving

instructions or thought Internet searches were

permissible based on their interpretation of the

instructions

iii. A small proportion of jurors said they would be

unable to refrain from Internet use for the duration

of a trial even if ordered to do so

3. Adding to the concerns, many contemporary judges:

a. Do not perceive new media use as a pressing threat to trial

fairness

b. Do not take special precautions

4. The working assumption in the courts today is that juror

instructions are effective and mitigate the risks of juror misconduct

through social media

a. The fate of trial fairness in a new media saturated

courtroom currently therefore rests upon the effectiveness

of juror instructions

5. As new media becomes an inescapable integral part of everyone’s

life, the judicial system may need to invoke less common more

intrusive steps such as:

a. courthouse technology bans

b. contempt of court rulings

c. requiring jurors to sign pre-trial pledges not to use social

media

vii. New Media and Corrections

1. Following this book’s idea of crime and justice media content

being front end loaded with more content about crime and crime

fighting, less about the courts, and little about corrections, the

impact of new media follows a similar diminishing path

a. Historically reluctant to deal with legacy media, the impact

of new media on corrections has also been limited

2. The impact of new media on corrections has largely focused on

keeping inmates and new media separated

a. Aside from staff and administrative uses, there is little new

media in correctional facilities

b. The general goal is to prevent inmates from gaining access

to mobile phones and the Internet for security reasons

3. It is in association with sentencing determination that new media

has most directly affected corrections

a. Information garnered from new media is often introduced

at sentencing, usually at a means to argue for increased

punitiveness

i. Prosecutors frequently use defendant postings and

damaging Internet photos:

1. to cast doubt on defendant’s character

2. to undermine claims of defendant remorse

3. to counter arguments that the criminal

behavior was an aberration

b. New media also shows up as a condition of sentencing

4. In the pursuit to better protect the public from new media based

predation, restricted access to new media as a condition of a

sentence has been pursued

a. Offenders utilizing new media to further harass their crime

victims are one driver of this trend

i. Example: it was reported that offenders in the

United Kingdom were posting taunting and

terrorizing messages on Facebook to their crime

victims and victim’s families

1. As a result, a call for the automatic loss of

“cyber liberties” in addition to loss of civil

liberties when found guilty of a serious

crime has been lobbied for in the United

Kingdom

2. Such sentencing policy drives raise the

question of whether bans on access to new

media as part of a sentence are constitutional

in the United States

5. The anti-ban argument is that new media access is a basic social

practice related to free speech and freedom of association and that

access bans would so severely limit employment opportunities as

to constitute cruel and unusual punishment

6. Irrespective of the continuing debate, the banning of access to the

Internet has become a more common condition of correctional

community sentences

a. Appeal courts’ rulings regarding these restrictions have

noted that probation sentences are aimed at rehabilitation

and therefore conditions must reasonably encourage law

abiding behavior and not simply be punitive

i. Blanket restrictions to large groups of offenders

without a logical linkage to the sentenced crime

have accordingly not been supported

ii. The meaning of reasonable restrictions on internet

or computer access is what remains unclear

iii. Regarding general computer access, the banning of

computer use has been usually ruled as acceptable if

the conviction crime involved computer usage in

some fashion and was appropriate for preventing

similar future crimes

iv. Specific restrictions on elements of computer use

such as email access have also been upheld, if email

was a component of the conviction crime

v. Appeal cases to date have focused around child

pornography

1. Blanket bans on Internet access that include

non-pornography related access to the

internet for email, news, weather, work, and

research seen as essential to modern life

have been successfully challenged

vi. Deemed acceptable were focused restrictions which

bar Internet access to specific types of sites and the

installation of filtering software for the monitoring

of offender computer activity as additional

conditions of a sentence

7. In sum, the acceptance of bans on new media use as a sentencing

condition is determined by their relation to the offense and their

impact on possible rehabilitation

8. The monitoring and revocation of new media connected sentence

conditions:

a. put additional burdens on correctional personnel

b. require an increased level of knowledge with new media

and technology

i. Correctional personnel who directly supervise

offenders in the community will need to understand

new media as both a source of offending and

rehabilitation

9. Current research has not clarified the relationship between the

criminogenic versus the treatment potential of new media

a. Example: A study of online communications between a

small set of male juvenile delinquents in Singapore found

that Facebook was one of their principal means of social

interaction, supplanting in importance direct face-to-face

contacts for many of these juveniles

i. This study suggests that in the new social media

environment, even offenders in high supervision

correctional rehabilitation programs will have

access to persons who they would not be allowed to

physically come in contact with

ii. The nature of social media works to undermine

correctional rehabilitation efforts by affording

extended opportunities to offenders for unstructured

and unsupervised interactions with delinquent peers

1. Keeping offenders apart and removing them

from their communities may no longer be

enough if the goal is to change their social

networks

iii. In the Singapore study new media allowed:

1. the endorsement of delinquent acts by

distant delinquents

2. increased pressure on separated delinquents

to continue to display criminal gang group

loyalty

3. increased the difficulty for delinquents

looking to rehabilitate themselves to create

and maintain a social distance from their

prior delinquent associates

10. In a manner similar to the expanded reach of law enforcement,

criminogenic influences are also given greater breath by new

media

a. The social reality that new media have already brought to

criminality, law enforcement, and the courts will have to be

eventually addressed within the field of corrections

II. New Media and the Future of Crime and Justice

a. A reality in which media-generated digital content interweaves with non-mediated

face-to-face reality is developing and changing the way society functions

i. As the mediated experience moves closer to a real world experience

human interactions are more often conducted via “face–to-face-like”

communications, less often in face-to-face contacts

ii. In this evolution, new media bring new capabilities to the criminal justice

system

1. They have proved helpful in:

a. investigations

b. case processing

c. crime prevention

d. but have also increased the capability of criminals to

commit crime

iii. These mediated criminal justice experiences are:

1. Realistic

2. Participatory

3. Entertaining

a. an individual today can experience crime and criminal

justice via new media and come away with a sensation akin

to actual experience

iv. New media enable users to communicate:

1. with almost anyone

2. at any time

3. from anywhere

v. In addition, contemporary social media are the first crime news source for

many and combined with the images of surveillance cameras are powerful

crime and justice social construction engines

b. Stresses on the criminal justice system from the emergence of new media are

unavoidable

i. First, new media are by their nature decentralized and multidirectional

while the criminal justice system by nature is centralized and

unidirectional

ii. Information flows in all directions through new media while in criminal

justice it tends to flow from law enforcement to courts to corrections

iii. Furthermore, new media are intimate yet anonymous and information is

loosely owned and widely distributed across blurry digital boundaries. In

contrast, in the criminal justice system cases and information usually flow

in one direction and the loosely coupled criminal justice agencies have

separated budgets and independent ideologies. Criminal justice system

agencies therefore tend to closely hold tight to their information,

frequently demanding court orders before divulging anything

iv. New media content is multimedia, digital, holistic, emotional, and image

dominated whereas the criminal justice system content is textual, linear,

impersonal, and paper based

c. In the face of these basic differences, it is not a surprise that the introduction of

new media created both issues and opportunities for the criminal justice system

i. New media provide access to a new source of evidence and information

and a means to reach citizens that no longer monitor traditional media

while simultaneously undermining long held criminal justice habits

ii. The transition from one to the other will be slow and for some agencies

painful

d. The most important policy related effect of the transition will be significant with

the greatest effect anticipated from a state of permanent crime related moral panic

i. New media will extend and sustain social crises over rare crimes that

previously would have been short lived

ii. An amplification effect that forwards the faulty system frame

1. Extreme local cases will be highlighted and transformed into

national moral panics

2. Described as an echo chamber, social media will pick up, repeat,

and loop crime stories

3. Discussions of crime and justice will be constructed without

neutrality or objectivity and peppered with statements of outrage

replacing factual claims

e. A pernicious dynamic has been noted in which predator criminals are emphasized

in content that leads to heightened fear among the participant-audience

i. To keep the audience involved and the sense of fear to be sustained, this

panic must be extended beyond a fear of criminal predators to a fear of

inaction and lack of punitiveness by the criminal justice system

ii. The new media worldview is of a society-at-risk where eminent, constant,

and lethal dangers must be aggressively and punitively addressed in a

never ending crisis

iii. Ironically, although both the social and criminal justice system are painted

as failing, the solution is the reform and enhancement of the criminal

justice system

1. Reform is seen as a ratcheting back on due process, salvation as

the ratcheting up of punishment

Chapter Key Terms

Crime sourcing [229]

pretexting [240]

Helpful and Interesting Internet Sites

The following sites are interesting sources for this chapter. Please review them before

recommending them to your students.

New Media and Crime

http://www.columbia.edu/itc/sipa/nelson/newmediadev08/New%20Media%20and%20Real-

World%20Crime.html

http://www.digitaltrends.com/social-media/the-new-inside-source-for-police-forces-social-

networks/

http://mashable.com/2010/03/17/law-enforcement-social-media/

http://www.dmlp.org/forum/business-law/law-against-cyber-crime