Use of social media in Massachusetts witness intimidation, sex for a fee, and other criminal prosecutions

Recent high-profile cases have sparked conversation about the role of social media, such as Twitter, YouTube, Instagram and Facebook, in criminal prosecutions. In many ways, criminal defendants can become their own accusers by documenting criminal conduct on these outlets. As noted in the previous blog post, here in Massachusetts, screenshots from social websites are increasingly being used, often in prosecutions involving charges of sex for a fee, criminal harassment, witness intimidation, threats, restraining order violations, and more. Social media present unique opportunities for false claims of authorship, and one issue that may arise when the government attempts to use this type of evidence involves authentication. In other words, these screen shots can involve questions of whether there is enough evidence to believe that the item is what the government claims it to be. Under Massachusetts and federal rules of evidence, the trial judge is to consider "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics." The highest court in Massachusetts has decided that evidence that a defendant's name is written as the author of a social network message alone is not enough to authenticate the communication as having been authored or sent by the defendant and that there must be some "confirming circumstances." In Commonwealth v. Williams, a 2010 Supreme Judicial Court case, the court ruled that MySpace messages should not have been admitted where there was no testimony relative to the security of the website, persons who could access the MySpace page, or whether codes or passwords were needed for such access. A defendant's actions might authenticate electronic communications. For example, in Commonwealth v. Amaral, a 2011 Appeals Court case, an undercover police officer holding himself out as a 15-year-old prostitute had been communicating electronically with the defendant, who was ultimately charged with and convicted of attempted rape of a child and soliciting a prostitute . There, the court ruled that the defendant's presence at an agreed upon meeting spot at an agreed upon time confirmed that he was the author of the communications. The court acknowledged, however, that in modern times, it is easy to set up false accounts using another person's name and image. Another issue that might come up in cases involving social media is whether the communication was intentionally or voluntarily sent. Sometimes, websites like Facebook or Twitter send out automated requests or notifications . It's also not uncommon for users of social media to get viruses that send out, without the user's knowledge, messages to their connections. Image may be NSFW.
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