Social-Media Discovery: It’s a Matter of Proportion
Jonathan E. Moore
Given its widespread use, social-media content has become an increasingly common target for discovery in civil litigation. Meanwhile, the highly personal nature of much of this content, as well as the expectation – often contrary to the law – that it can be kept private, often leads to disputes about its discoverability. In many instances, courts have purportedly justified limiting discovery of social-media content on the basis of relevance, although in a manner contrary to the application of the broad relevance standard for other types of documents. This Article argues against creating a separate relevance standard for social-media content. Instead, courts should apply proportionality in a flexible manner when managing social-media discovery — particularly in light of the privacy, accuracy, and public-policy concerns associated with this information.
The United States Constitution generally prohibits use of testimonial hearsay against a defendant in a criminal case unless the defendant has been afforded an opportunity to cross-examine the person who made the hearsay statement. In an exception to the general rule, a criminal defendant can lose the right to cross-examine someone who the defendant has prevented from testifying at trial. The Supreme Court has left a question unanswered: What evidentiary standard is required to prove wrongdoing so that confrontation forfeiture applies? Lower courts are divided. This Article analyzes lower-court decisions that have adopted different burdens of proof to resolve confrontation-forfeiture issues. It also analyzes clues from the Supreme Court that might indicate which proof standard the Court will eventually adopt.
Of the 329 post-conviction DNA exonerations in the U.S., forty-seven percent are attributable to unreliable forensic evidence being used against a defendant. Firearms examiners testify that they can match tool-marks produced by a suspect weapon to suspect ammunition. These claims have been undermined by research, yet courts are still accepting this testimony and rejecting challenges. This Article argues that this judicial reasoning is flawed, explores the struggles that jurors and lawyers face with forensic evidence, and encourages judges to rethink their reliance on finality when faced with challenges concerning the veracity of firearms-identification evidence.
The court martial of Private First Class Bradley Manning, a government whistleblower, raised the specific question of whether charges under the Uniform Code of Military Justice (UCMJ) may be brought against civilian news publications who choose to publish classified information. This question led to a general fear that the UCMJ could be used to attack free speech and freedom of the press. As cases involving government leakers increase due to the ease of disseminating information to a widespread audience via the internet, it is important to understand both the extent and limitations of the government’s ability to prosecute. In the Manning trial, the “aiding the enemy” charge provided the government with a correct and powerful tool to prosecute.