Accessing Social Media: A Win for California Defense Attorneys

A jarring disconnect in criminal justice fair play was remedied last week by the California Supreme Court, and defense attorneys across the country took due note of it.

Last Thursday’s high-court ruling — long pushed for by the state’s defense bar and lauded as “so significant” by one commentator – eliminates what had been widely perceived as unfairness that made prosecuting some cases easier and defending them correspondingly harder.

Here’s what rubbed defense attorneys the wrong way for years: Police and prosecutors could obtain social media communications relevant to a criminal case via subpoenas and warrants before trial, but the defense bar could not. Critics charged that such inconsistency in treatment undermined fair play for affected criminal defendants.

Last Thursday’s judicial ruling fundamentally changed that. The defense bar will now have the same right of access as the prosecution in cases where relevant evidence in social media accounts (read Facebook, Twitter and so forth) is being solicited. Online companies will no longer be able to argue that federal privacy law checks their cooperation.

Some readers might reasonably note a bit of puzzlement concerning the court’s ruling, given that online account users’ information already in the public domain is by definition accessible to third parties. Such access does not equate to lawful use of such information as evidence in a court case, though, absent its authenticity being confirmed by either the user or the media site hosting company. The court’s ruling now takes away any cited excuse for withholding requested data.

A Los Angeles Times article spotlighting the case and its importance notes that the California Supreme Court “was the first state high court to take up the issue and the first to rule on it.”

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