Is Facebook Causing Complications In Nursing Home Abuse Cases?

Recently, Facebook has been causing numerous complications in both criminal and civil trials.There have been several prominent cases across the nation within the last few years where either (1) co-defendants have tried to communicate with one another despite no-contact orders through Facebook (2) a defendant has threatened or contacted a juror through the networking site or (3) a defendant gained access to a plaintiff's  "private information" on the site  and used it as ammunition within which to impeach their credibility during trial.

The latest case involves two Minnesota women who are on trial for abusing nursing home residents where they were previously employed. Brianna Broitzman and Ashton Larson have been charged with assault of a vulnerable adult by a caregiver and abuse of a vulnerable adult with sexual contact. The women, who have been friends since high school, allegedly "sexually pok[ed] and spit on vulnerable residents" at the Good Samaritan Society nursing home in Albert Lea, Minnesota.

Last January, the women were allowed to post bond under the condition that they have "no contact with co-defendants". However, prosecutors are now alleging that the two women may have been communicating with each other about their case by reading each other's posts and updates on Facebook. Unfortunately, there is no existing law regarding such activity and the police department must decide its next step carefully.

Facebook may also be allowing defendants to contact jurors during their trials. This year, also in Minnesota, a man on trial for sexual assault tried to "friend" two jurors. Consequently, a mistrial was declared.

Furthermore, there was the recent New York case of Romano v. Steelcase Inc. which came out of New York Supreme Court. In that case, the plaintiff sued the defendant for permanent injuries and loss of enjoyment of life when she fell off her office chair. However, after the defense caught wind of the fact that she might have traveled out of state during a period where she alleged to be immobile, they requested access to her facebook and myspace accounts. The New York trial court ordered the plaintiff to grant a defendant access to her Facebook and MySpace accounts, including" deleted and historical pages, on the grounds that photos on those pages were inconsistent with her claims of loss of enjoyment of life" The Court noted in its decision that the plaintiff "had no reasonable expectation of privacy because neither Facebook nor MySpace guarantee complete privacy". Although there are no public accounts of what the defense actually found out in the case from her social networking sites, one can speculate that the Court's order did not help the plaintiff's case.

New York and Minnesota law enforcement officials are hoping that the increasing number of cases becoming entangled with Facebook will pressure local lawmakers and the courts to come up with new laws and orders tailored specifically to problems associated with Facebook communication. I have had issues with clients posting pictures or updates on their Facebook that may hurt their case. A number of months back, I posted an answer to the frequently asked question: Why might a social networking site such as Facebook be bad for my case? This question can be found at http://www.protectingpatientrights.com/faqs/why-a-social-networking-site-such-as-facebook-may-be-bad-for-your-case.cfm. Within this entry, I described how I discovered that a client had explicit photographs on her Facebook page that did not portray her in a positive light,( i.e., the client was pointing a gun at someone (albeit as a joke) ). At trial, jurors are instructed by a judge that they should not discuss the case with family members and friends. While some follow this instruction and many don't. It is very common for jurors to check Facebook or MySpace to learn more on the plaintiff. After seeing the photograph, I immediately advised my client to remove the photographs from her Facebook page and a catastrophe was averted.  If a juror seen the compromising photographs of the client, the outlook for a positive verdict from the jury would have changed in an instant.

After this incident, I firmly support a change in law that would (hopefully) deter clients, both as plaintiffs and defendants, from utilizing facebook in a way that would be detrimental to their case. I personally advise my clients to remove all of their content, whether written, photographs or video, from social networking sites that are available to the public.  Many of my clients assume that their information is not accessible to the public and we always check to make sure--often our clients are wrong!  Do your due diligence and make sure all of the information on the social networking sites is removed from access by the public, especially if you are involved in a trial!