Wednesday, August 15, 2012

A Funny Thing About Facebook...

     A funny thing about distilling the various thoughts, antics, and events of your day into words which you then post on Facebook is that such confessions to your Facebook friends might just land you in jail.  By way of example, I direct you to this little gem of a story about a mother who recounted shaking her baby to death in posts to her Facebook page @

     Facebook is not a confessional, though many of us are guilty of using it as such on occasion.  For most of us, these momentary lapses in good judgment are merely embarrassing in retrospect.  However, if they involve legally actionable or criminal conduct, then you may have a major problem on your hands.  Unlike the sins that we may recount to a priest in a confessional, there is no legally cognizable privilege that can be asserted with regard to a Facebook post. 

     Fine, you have marked your Facebook post as viewable by “friends only”, rather than as “public”.  All this does, however, is place your Facebook post on par with a note or a letter that you have passed to a friend.  Unless that friend happens to be your priest or your lawyer (or, in certain situations, your spouse), it is not a “privileged” communication that is legally protected from disclosure.

     Thus, if your Facebook post describes your efforts to poison your spouse, how exhausting it was to beat your child to death, or how you were so drunk last night that you don’t even remember driving home and your “friend” finds this disturbing, they may feel compelled to print out a screen shot and deliver it to the local police department.  No privilege has attached to this communication and your “friend” is completely free to take such action.

     In order for law enforcement to search your computer or access all of your online missives through Facebook directly, a search warrant will be required.  However, armed with a copy of the Facebook posts that have been provided to them courtesy of an online “friend” you have “shared” with, the ensuing search warrant that will invariably result should not be at all difficult for law enforcement to obtain.

      So, as a general rule of thumb, prior to “sharing” information with anyone who is not your priest or your lawyer via any mode of communication, pause for a moment and consider whether it is something that you want to be discussing as part of a court case against you.  If not, then erase, erase, erase, hit “cancel”, “log out”, and step away from your computer or mobile device!

     While that may all sound tongue-in-cheek, as well as obvious, the reality is that almost everything that we say or do may be used against us unless it falls within one of a handful of narrow, limited exceptions that the law recognizes.  The two most common and most widely misunderstood types of exceptions are (i) privileged communications and (ii) the right against self-incrimination.

     In order for a communication to be privileged and, thus, protected from disclosure, it must first be a communication.  A communication can be oral or in writing, which includes a tweet, a text, an email, a Facebook post, a notation on a calendar, or even a diary entry.  In some instances, a communication may even be non-verbal (or silent communication) if it is purposeful and done with the intent to convey information, such as rolling your eyes in some exaggerated fashion or making a hand gesture. 

     However, as a general rule, actions are not communications and, therefore, no privilege attaches.  So, if you confess to your priest that you stabbed someone in the parking lot of a bar last night, that is a protected communication.  If, on the other hand, your priest is standing next to you in the parking lot when you stab someone, then the action of the stabbing witnessed by your priest is not a communication and the priest can be compelled to testify as to what he saw.

     If it is a communication, then the question is to whom was the communication made and is there a privilege that the law attaches to that particular relationship that would protect it from disclosure.  There are only a few such relationships and, even within the context of those relationships, the privilege is not absolute. 

     The privilege primarily applies to communications between priest-penitent, doctor-patient, attorney-client, and husband-wife.  Again, these privileges are not absolute and some may only be asserted by the recipient of the communication (such as in the case of a clergyman under Virginia law). 

     If you burst out with “I can’t believe I just stabbed that guy” while your doctor is stitching you up in the emergency room, that statement is probably not protected.  If you disclose to your therapist that you intend to poison your husband at dinner, your therapist probably has a legal duty to report this to the police.  If you tell your attorney that your husband never actually beat you, as you have alleged in your divorce case, and that you only made these claims to ensure that you got the kids and the house, then you will have seriously impaired your attorney’s ability to present “your case”, at a minimum.

     The privilege between spouses is more tenuous and complicated than the other types of privileges and it is one that is far from absolute.  Without chronicling all of the exceptions, the most important one to be aware of in the context of family law is that there is no privilege to assert in an adversarial proceeding against the spouse.  Once you are on one side of the “v.” and your spouse is on the other side of the “v.”, it is a fair bet that any statements you have made to your spouse during the course of the marriage may not be protected from disclosure on the basis of privilege.  There may be other exclusionary rules that could be applied, but “privileged communication” is not apt to be one of them.

     There is no privilege between parent-child, siblings, extended family members, or best friends, at least not in the Commonwealth of Virginia where I practice law.  So, if you had a marital indiscretion and you do not want your sister or your best-friend to be summoned to testify against you in a subsequent divorce case, then do not confide this information to them in the first place.

     It is also worth noting that there is no privilege in communications with one’s self, such as a diary.  So, if you fantasize about poisoning your spouse or you have committed a marital indiscretion, it is probably best not to memorialize these tidbits of information in your journal.  If journaling is a necessary exercise for you, then I would suggest burning it as soon as you are done.

    With regard to disposal of diaries, calendars, journals, emails, photos, videos, records, and other “evidence”, a duty to preserve all such evidence attaches once litigation is reasonably anticipated.  Failure to do so can result in some fairly hefty sanctions, both monetary and non-monetary, including barring you from presenting evidence at trial.  Once you walk into the attorney’s office to discuss your impending separation/divorce, it is arguably a little too late in the process for your attorney to instruct you to burn all of your diaries in the backyard.

     To dispel another common misconception, the protections set forth in the U.S. Constitution apply to the actions of the government with respect to the individual, not to actions between individuals.  Over the course of time, some of these constitutional protections have been extended in limited ways into other areas through legislation.  So, for example, an employee may have some limited free speech rights, rights to privacy, and rights against search and seizure with respect to their employer.  However, these rights and protections do not derive directly from the Constitution, unless the employer is “acting as an agent of the government.”

     With specific regard to the right against self-incrimination (i.e., “taking the Fifth”), this right only protects the individual from being forced to give testimony that may reasonably result in criminal prosecution/criminal liability.  If the conduct being inquired into is merely embarrassing, not criminal, then there is no such immunity.

     In the context of a civil proceeding, such as a divorce case, this privilege may be invoked in response to a question at deposition or trial such as “Isn’t it true that you beat your wife/molested your child/had sex with that other woman/filed a fraudulent tax return last year?”  The privilege does not apply to past statements, posts on Facebook, confessions to a friend, or matters that could not reasonably lead to criminal prosecution or criminal liability.  There may be other evidentiary rules that could be asserted to prevent disclosure, but “taking the Fifth” is not one of them.*

     Depending on the laws of your particular state, it may be perfectly legal for your spouse to tape record conversations that you are having with them, to video tape almost anything with or without your knowledge (provided there is no audio), to access your emails (unless you have properly protected your passwords), and to access and copy your computer files if stored on a common or “household” computer.  If your passwords are plastered across your computer on little pink Post-It notes, remove them now.

     Messages left on a voice mail or answering machine are fair game, as are text messages and emails that you send to your estranged spouse.  Posting to Facebook is the equivalent of walking into your favorite neighborhood restaurant, standing on top of the bar, and shouting it out to a hundred witnesses who may be forced to testify against you later.  If there are photos to accompany your Facebook confessions, please reconsider before clicking the “upload photo now” button, and keep your videos off of You Tube!    
* As a technical aside, the Fifth Amendment privilege applies to actions by the federal government.  It is the Fourteenth Amendment that extends this privilege to state court actions.  So, unless there is also a federal law against adultery (which, to my knowledge, there is not), then the correct privilege to assert is the Fourteenth Amendment.  As a matter of practice, however, I usually instruct clients to assert both.

This site is not intended to provide legal advice nor should any content or correspondence provided herein be construed as forming an attorney-client relationship. All content is intended as general information and/or for entertainment purposes. The attorney responsible for the content of this site is only licensed to practice law in Virginia and the District of Columbia and no content provided on this site is intended as nor should be construed as the practice of law in any jurisdiction in which said attorney is not authorized by law to practice. Should you require legal advice or representation, please contact an attorney authorized to practice law in your jurisdiction.

© 2012 by Jennifer E. Mandell.  All rights reserved.

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