Social media/networking sites such as Facebook, Twitter and MySpace have become both an increasingly fruitful source of evidence for trial lawyers, and the subject of more court opinions.  Depending on which side of the fence you practice, social networking sites may be a blessing or a curse.  And in either case, trial lawyers should make sure jurors are properly instructed against using social media to discuss a case during trial.  

Defense lawyers often gain surprise advantage by utilizing information posted by plaintiffs on social media sites, against them.  For example, a personal injury plaintiff’s posting of pictures of herself out dancing with friends after her accident.   To guard against such involuntary assistance to the defense, prudent plaintiffs’ lawyers caution their clients, particularly in personal injury cases, to be wary of posting personal activities on social media sites that may be used by the defense to devalue their claims.  

Courts make routine evidentiary calls regarding social media information which decisions are often based on considerations of potential prejudice.  For example, in Quagliarello v. Deweer, 2011 WL 3438090 (E.D. Pa. 2011), after noting the value of social media websites as a source of evidence for litigators, the Court denied plaintiff’s motion in limine to preclude defendants from introducing into evidence photographs of plaintiff from Facebook and MySpace, finding potential prejudice did not outweigh the probative value of such photographs regarding plaintiff’s emotional state which she put into controversy.  Conversely, in U.S. v. Drummond, 2010 WL 1329059 (M.D. Pa. 2010), the Court noted that while photographs on MySpace depicting the defendant holding cash were relevant circumstantial evidence of drug trafficking, the photographs may be precluded at trial because their probative value is outweighed by potential unfair prejudice. 

Another area of interest for trial lawyers is ensuring that proper jury instructions are given to jurors prohibiting their use of social media to discuss a case during trial.  In U.S. v. Fumo, 655 F.3d 288 (3d. Cir. 2011), the Third Circuit held that the District Court did not abuse its discretion when it denied former senator, Vincent Fumo’s motion for a new trial based on alleged substantial prejudice he suffered as a result of a juror’s Facebook and Twitter comments about Fumo’s case during trial.  While the Third Circuit blessed the cautionary instructions given by the District Court to jurors prohibiting and admonishing juror use of social media to discuss a case during trial, the Third Circuit noted that not every failure of a juror to abide by such prohibitions results in substantial prejudice warranting a new trial.  Indeed, the District Court found the juror posts to be “nothing more than harmless ramblings having no prejudicial effect.”  

Trial lawyers should anticipate social media issues to continue to fuel motion practice and evidentiary rulings, and should proceed with caution accordingly.