New York Lawyer's Legal Updates

Using Social Media To Prepare A Destructive Cross-Examination

By Anthony J. Colleluori

The direct testimony was devastating. Jenny, the daughter of your client's ex-wife was hiding in a bush, and witnessed an attack on her mother by your client, her step-father. As the direct examination ends, the courtroom becomes silent, only Jenny's sniffles can be heard. She is believable, but she is lying. Now you must cross-examine her and expose her lies. How will you prepare for that cross?

It is never too early to begin thinking about trial. Everything you do upon taking a case should be with an eye towards trial. Whether defending a criminal case or drawing a contract, you must take a trial lawyers eye to know how to prepare your work.

Discovery must be well planned if you are to successfully cross Jenny. Modern trial lawyers have many tools not available to generations past. What we learn from those tools can help us decide what tone and attitude we can take with the witness.

From the start, counsel must plan for obtaining the witness' e-mail, text messages on her phone and computer, her Facebook and MySpace alerts. He needs to access the social media "groups" she has joined. (In the case above, the witness' participation in a Facebook group "My parents are divorced! YAY ME!" led to comments she made on that page and opened up questioning about feelings that expressed an animus toward her step-father.)

Discovery of a witness' "Twitter tweets" and YouTube appearances are a must. Looking at any questions she may have asked on sites such as Avvo.com or Law Guru will help counsel learn if the witness is prepping herself or trying to cover her tracks.

Counsel's investigator must speak to the witness' friends and teachers. The investigator should use hidden microphones (where permissible) and ask whether the witness spoke about the incident and when. He should further get screen names of these "friends" to learn what they have said about the witness or her "troubles" on their social media websites.

The best way to obtain e-mail is by subpoena. Wait to issue the subpoena for a week or three after the arrest, but as soon as a witness is identified, subpoenas should be prepared. Serve all e-mail sources. Schools (some school districts give children e-mail addresses), work, service providers (such as Optimum Online or Verizon), and of course the big public sites: Yahoo, Gmail, AOL etc.

Do not forget about Facebook messages and MySpace mail. Look in "Spam" and "Trash" Directories. Blackberry and I-phone have their own e-mail and text message services that are outside of the service provider's products. If the witness has deleted her e-mail, you may have to subpoena her actual computer to see if any items are hiding in the hard drive's memory.

Finally, if you suspect the witness was not present at the event, you should seek to "triangulate" her cell phone. Few adults much less teenagers will let their cell phones out of their sight for nary a second. Get the name of the cell phone provider, an expert in cell phone tracking, and you can accurately find out where her cell phone was when the "attack" took place. Using cell tower records and the GPS on the witness' cell phone, the Phone company records can "track" the whereabouts of a user to as close as 130 yards even if they are not using their phone.

In setting up that cross, establish her possession of the phone using leading questions:

  • Q: Jenny, you own a cell phone?
  • A: Yes
  • Q: You owned the phone on the day this occurred?
  • A: Yes.
  • Q: You had the phone with you when you saw this attack.
  • A: Yes.
  • Q: Your cell phone number is 867-5309, right Jenny?
  • A: Yes.

Later you can confront her with the tower records. If she insists she was in the bush, you can call the expert. If she breaks down and admits she was lying all along, you will have your "Perry Mason" moment. Savor it, there are not many.

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