Unlock document.
This document is partially blurred.
Unlock all pages and 1 million more documents.
Get Access
12
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 “Audience as trial observer” has been replaced by the “audience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
13
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
14
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
15
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:
16
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
17
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
18
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
19
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
20
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
21
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
