A recent New Hampshire criminal case is extremely sad: a mother left her child in a bathtub unsupervised and the child drowned. She was convicted of manslaughter, in part, due to electronic evidence in the form of her web history. The prosecution used a forensic computer analysis to determine that after running the bath and leaving her 1 year old and another child she spent FORTY-TWO minutes on the internet, reading and writing blog posts on a website devoted to women trying to raise money to have breast implants.
She appealed her conviction on basis that the information – specifically the content she was viewing – was not relevant. The disclosure, she argued to New Hampshire’s Supreme Court, of the information that she trying to raise money for breast augmentation instead of supervising her children in a bathtub might lead the jurors to form “negative ‘moral conclusions’” about her. The Court, seeing right through this argument, identified that it was the duration not the content that was an indication of guilt. Moreover, the Court found the impact of the content of the website, compared to the rest of the state’s evidence, was relatively inconsequential.
The relevance of this case to family law is that the criminal courts continue to be the vanguard for the use of electronic and computer evidence as evidence at trial. Despite the pervasive nature of computers, smartphones, and mobile devices, some courts still tread lightly on allowing for the discovery of social media accounts in family law cases; there seems to be a greater threshold to demonstrate it is relevant than for more traditional discovery. It runs somewhat counter-intuitive that family law cases are not more prevalent in creating the law on social and electronic media evidence, but the “discovery labs” of the criminal dockets and personal injury litigation (i.e. the “injured back” litigant who posts a Facebook video of himself bungee jumping) are making the template for custody, support, and equitable distribution cases.
The New Hampshire case is another example of how our time is now tracked and measured by our online lives without our even being aware of it happening. We are more “trackable” now through EZ-Pass, twitter feeds, and Facebook “check-ins,” all of which can all show were we were and when. This information can be invaluable to a case and serve as fodder on cross-examination or to corroborate a fact. The use of this information at trial will only increase, as will the requests for discovery from become more standardized, tailored for specific purposes, and less prone to objection.
Consider this as you prepare for New Year’s: you may not remember a year from now “checking-in” at your favorite bar at 1 a.m. on your custodial, holiday night with your kids, but your Twitter account will.