In the past several weeks, we have commented upon two cases involving a Facebook friendship and its effect on pending civil and criminal litigation. One matter involved a family law matter in which a judge was Facebook friends with the daughter of two competing divorce litigants. Another involved a criminal case in which a juror was Facebook friends with a relative of the victim of the homicide being prosecuted. In both of those cases, the appellate courts discussed generally the nature of a Facebook friendship, but they did not probe more deeply into the specifics of the Facebook friendships at issue. Certainly, the trial counsel in the underlying cases could have litigated the nature and depth of the social media connection more deeply (and in fairness, perhaps they did, but such details did not make it into the appellate opinion). This post will offer a few questions that can be asked to probe these issues more deeply.
When did the Facebook friendship come into being? This is an important question because the origin of the Facebook friendship in question is quite relevant. Did it occur years before the trial? Did it occur prior to or during the events being litigated? Was the friendship request instituted because of a familiarity brought about by the events being litigated? Or, did the Facebook friendship predate the events being litigated and its origin have little, if nothing to do with the matter being tried?
How can the Facebook friendship be characterized? Sometimes, judges, as local officials, maintain Facebook profiles, and it may be that throngs of citizens in the community have connected with their local officials via social media. Thus, it may be telling to know how many Facebook friends each party to the friendship has. Are there thousands, or are their dozens? This may make a difference. This is true even if the individuals are not public figures. Do the users accept every friend request they receive, or are they more discriminating? Have they simply connected via a Facebook friendship, or do they utilize that friendship to communicate further? Do they post on each other’s Facebook walls? Do they send private messages? If so, when, and how often? And, of course, have they ever communicated about the subject matter being litigated through social media?
Who instigated the Friendship request? This could also be important. Again, if one of the parties to the friendship is a judge or community figure, it may be that they are inundated with friend request, of which the friendship at issue was once one. However, it may be that the friendship at issue was borne of a closer connection, and thus, the identity of the instigating party should be determined.
What is being published on the two profiles at issue? To adequately address this inquiry, one would need to know what the parties to the Facebook friendship might have learned from each other during the friendship itself. Are the friends able to see each other’s private profiles (which may not be accessible to members in the general public)? Have either of the parties to the Facebook friendship posted on their profiles about the events being litigated? Might one friend have seen relevant information about the case on another’s profile?
Have the two met in real life? It’s always important to determine if the parties have met IRL or, rather, if the Facebook friendship is evidence of an offline friendship, as well.
Accordingly, these are issues which should be addressed in any such inquiry.