We’ve all heard the stories about lawyers using social media to research jurors and to gather evidence about opponents. But here’s a new twist: even judges look to Facebook to find information about the parties appearing before them.
In Purvis v. Commissioner of Social Sec., 2011 WL 741234 (D.N.J., Feb. 23, 2011), the question before federal judge Susan Davis Wigenton was whether the plaintiff had been wrongfully denied Social Security benefits. Ultimately the judge determined that the question of whether plaintiff’s asthma made her disabled needed to go back to the Social Security office for further proceedings. But the judge had some pretty severe skepticism about the merits of the plaintiff’s claim, expressed in this footnote:
Although the Court remands the ALJ’s decision for a more detailed finding, it notes that in the course of its own research, it discovered one profile picture on what is believed to be Plaintiff’s Facebook page where she appears to be smoking. Profile Pictures by Theresa Purvis, Facebook, [link omitted because it’s broken] (last visited Feb. 16, 2011). If accurately depicted, Plaintiff’s credibility is justifiably suspect.
I guess the moral of the story is to hide your smokes when someone pulls out a camera. Or maybe there’s an even bigger lesson. What do you think? Leave your comments.
March 9, 2011
why would smoking prohibit her from getting benefits?
March 9, 2011
Vincent – it's because she was claiming her disability was based on her asthma.
March 9, 2011
I think Cole is right. Does that count as ex parte communication? My own understanding is that judges are supposed to decide solely on the record. Perhaps that doesn't apply here b/c of the remand.
March 10, 2011
Plain sight doctrine now to a large degree applies to internet communications… The judge may claim it's just like going to e-baum's world and clicking on idiotic stuff.
March 10, 2011
Did the Commissioner/DOJ present the Facebook picture as evidence, or did the judge find it on his/her own? I would think that the judge taking notice of this would be unethical ex parte "communications."
March 10, 2011
SQFreak – my interpretation is that the judge was doing her own research.
March 19, 2011
Last year, the 2d Circuit upheld a judge's Internet research in a parole revocation case
March 19, 2011
The decision is U.S. v. Bari, No. 09-1074 (2d Cir. March 22, 2010).
April 30, 2011
well, for the person in question and for all users of social networks, the lesson is to guard their privacy. As for the justice system, why not use every means they can?
May 18, 2011
I am not a US Attorney and not even a Practising Lawyer so forgive my ignorance if I misunderstand. I think it is an ex parte communication. US v Bari does say a Judge can do internet research, but is the internet always accurate and even if it is, which sites are going to be relied upon to support judicially noticed facts. Judges have disagreed over that. To allow judges to confirm their suspicions/suppositions/intuitions on matters of common knowledge seems like a perversion of the doctrine of notice just because its more practical and convenient. Judges might be tempted to confirm their hunches (on litigants' credibility where reviewing the legality of an administrative decision as in Purvis or in bail revocation proceedings) I think there was even some precedent suggesting Judges might be able to extend it beyond these cases.
May 18, 2011
It is counter to the adversarial system, as its up to parties to make the forensic judgement as to what evidence to lead and oppose for their clients, not Judges. A Canadian Judge acted like a private investigator for a defendant insurance company in trying to sneakily get a plaintiff to cede her password (the key to her house) to him so he could snoop around and look at anything. I hope that was a one off