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Washington Regional
Threat and Analysis Center
2720 Martin Luther King, Jr. Avenue, S.E.,
Washington, D.C. 20032
202-481-3007 | 202-563-2768 (Fax)
Officer Awareness Bulletin
Impeachment via Social Network
Websites
Issue:
Postings on social network websites such as Facebook and MySpace have been used
to successfully attack law enforcement officers' credibility in courts.
Examples:
In a New York State court, a NYPD officer was questioned by the defense attorney
regarding statements he had posted on his Facebook webpage that portrayed him as
a rogue cop. At the conclusion of his testimony, what should have been a
slam-dunk "ex-con with a gun" case, resulted in an acquittal for the defendant
because of the reasonable doubt created by the officer's own postings on
Facebook and MySpace. In other words, his own website statements were used to
impeach him.
Convictions rest on the credibility of the
officer(s). The defense strategy was to show the jury that what the officer
writes about himself on social network websites is how he "really" conducts
police work. The suspect in this case claimed that the officer used excessive
force on him and broke three ribs. The suspect went on to allege that when the
police officer realized that he would have to explain the broken ribs, he
"planted" a stolen 9mm Beretta on the suspect and charged him with the offense.
The officer in this case had made questionable
social network postings but claimed it was simply bravado, similar to what might
be said in a locker room. But the difference between jokingly "talking' trash"
in person and posting it on the Internet is that postings are preserved
indefinitely on a digital server. One of the notable postings introduced to the
jury was that the officer watched the movie "Training Day" (a motion picture
that displayed corrupt police behavior and brutality) to brush up on "proper
police procedure." Another series of postings revolve around miscellaneous
internet video clips of police arrests. One of his postings said, "if he wanted
to tune him up some, he should have delayed cuffing him." In another he added,
"If you were going to hit a cuffed suspect, at least get your money's worth
'cause now he's going to get disciplined for a relatively light punch."
In another example of poor judgment, an Indiana
State Trooper foolishly posted comments on his Facebook page that were in direct
conflict with the policies and procedures of his own department. In one comment
he shares his views of police work, referring to himself not a state trooper,
but as a "garbage man, because I pick up trash for a living." Another comment
was, "These people should have died when they were young anyway, I'm just doing
them a favor." An off-duty picture posted by the officer shows him holding a gun
to a fellow officer's head. Both officers had been consuming alcohol, which the
officer personally validated when he posted that they were "drinking lots of
beer" that day.
Social Network Consequences:
Take a moment to consider the consequences of how a skilled defense attorney
would use these postings to aid in the defense of their clients. In law
enforcement work, there are no second chances when it comes to one's integrity
and social network postings are available for the world to see and use, even
when made in jest, so think through the significance and possible consequences
of all postings before you hit the ENTER Button, and preserve them on a digital
server for all of eternity.
MPD Policy Reference is found
in the MPD Sworn Law Enforcement Officer Code of Ethics, GO-RAR-201.36, dtd
April 11, 2005. Section III - Regulations...
"I will keep my private life unsullied as an example to all, and will behave in
a manner that does not bring discredit to me or my agency."
Related Materials
Brady v. Maryland (1963)
Under Brady, evidence affecting the credibility of the police officer as a
witness may be exculpatory evidence and shall be given to the defense. Indeed,
evidence that the officer has had in his personnel file that displays a
sustained finding of untruthfulness is exculpatory to the defense.
Tennison v. City and County of San Francisco
(2008)
The Ninth Circuit U.S. Court of Appeals held that "exculpatory evidence cannot
be kept out of the hands of the defense just because the prosecutor does not
have it, where an investigating agency does. That would undermine Brady by
allowing the investigating agency to prevent production by keeping a report out
of the prosecutor's hands until the agency decided the prosecutor ought to have
it..." This ruling reiterates that the investigating agency is a part of the
prosecutorial team.
Source: Derived from Los
Angeles County Sheriff's Department News Letter, Vol. 9, No. 7, dtd May 27, 2009
References/Citations
Dwyer, Jim.
"The Officer Who Posted Too Much on MySpace." New York Times 10 March 2009.
Segal, Bob.
"Trooper in Trouble Over Facebook Photos." Indianapolis WTHR13 24 March 2009
Noble, Jeff (October 2003). Police Officer
Truthfulness and the Brady Decision.
The Police Chief, vol. 70, no. 10, Retrieved March 18, 2009
MPD Manual of Policy
& Procedure: 3-01/000.10 - Professional Conduct
Brady v. Maryland
(83 S. Ct. 1194).
Tennison v. City and
County of San Francisco (548 F.3d 1293).
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