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December 24, 2011

Connecticut Supreme Court upholds use of Facebook photos to revoke probation

Yesterday the Connecticut Supreme Court issued an interesting ruling concerning sentencing procedures and social media via Connecticut v. Altajir, No. SC 18706 (Conn. Dec. 23, 2011) (available here). Here is how the opinion starts, some of the factual backgrouns and then notable excerpts from the substantive portion of the unanimous ruling:

In this certified appeal, the defendant, Alia K. Altajir, appeals from the judgment of the Appellate Court affirming the judgment of the trial court revoking the defendant’s probation and sentencing her to three years incarceration. See State v. Altajir, 123 Conn. App. 674, 689, 2 A.3d 1024 (2010).  On appeal to the Appellate Court, the defendant claimed that the trial court had violated her right to due process under the fourteenth amendment of the United States constitution and article first, § 8, of the constitution of Connecticut by improperly admitting, during the dispositional phase of a probation revocation proceeding, a number of undated photographs gathered from Facebook, a social network website on which the defendant maintained a profile....

The record reveals the following undisputed facts and procedural history.  In July, 2004, the then nineteen year old defendant operated an automobile while under the influence of alcohol.  She lost control of her vehicle, which was carrying two passengers, and inadvertently drove off the road, down an embankment and into a river.  One of the passengers drowned as a result of the accident.  In October, 2006, the defendant pleaded nolo contendere to charges of misconduct with a motor vehicle in violation of General Statutes § 53a-57 and operating a motor vehicle while under the influence by a person under twenty-one years of age in violation of General Statutes § 14-227g. In accordance with a plea agreement, the trial court, Brunetti, J., imposed a sentence of five years of incarceration, suspended after one year, and five years of probation.  The trial court also imposed a number of special conditions of probation, including that the defendant install an ignition interlock device on any vehicle she owned or operated and that she not operate a motor vehicle without a valid license.  The trial court at sentencing "stress[ed] to this defendant that the treatment conditions, postincarceration, are very important and will certainly be enforced as aggressively as possible by the state."  The court further specified that "[i]f you do ten out of eleven [special conditions of probation] that is not good enough. If you violate one of those conditions you could be violated and wind up serving the balance of the four years."...

The defendant was released from prison in 2008, after serving the nonsuspended year of her sentence. While on probation in 2009, she was involved in a minor motorvehicle accident. The accident did not involve alcohol use; police determined, however, that she was operating a vehicle without the requisite ignition interlock device and that she had notrestored her driver’s license following its temporary suspension. The defendant subsequently admitted to violating the special conditions of probation that prohibited her from engaging in that conduct.

At a subsequent dispositional hearing, the state recommended that the court revoke the defendant’s probation and impose the remaining four years left to serve on her underlying sentence.  The state characterized the defendant as a "marginal probationer" who had failed to obtain a job, further her education or provide sufficient evidence of community service while on probation.  The state proceeded to emphasize that the defendant is "maintaining [a] Facebook site, and this is put out on the public domain for people to see.... [and] in all of these pictures is again worshipping at the altar of alcohol and debauchery and lewd behavior. And why is that significant? It’s significant because the message didn’t get sent, and this individual refused to accept it."

The evidence of reliability proffered by the state here is, at best, limited, and certainly would not be sufficient under the rules of evidence at a trial. The state contends that under the much less stringent standard for admissibility at probation proceedings its uncontested representation to the court that the defendant had darker colored hair after her incarceration, consistent with her appearance in some of the photographs, coupled with the presence of upload dates on the photographs, provided an adequate basis for the court to rely on the photographs as depictions of the defendant’s behavior during probation.  In refutation, however, the defendant has offered even less. At no point did the defendant deny the state’s clear and repeated assertion that these photographs represented her behavior while on probation.  Strikingly, in her allocution the defendant made no attempt to counter the state’s accusation that she appeared in these photographs "again . . . worshipping at the altar of alcohol and debauchery and lewd behavior" or to respond to the court’s expressed bafflement that "she still has the audacity to go back on Facebook and show herself in a condition of being intoxicated." Instead, the defendant admitted, partially through counsel, that she continued to drink alcohol and denied only the suggestion that she ever drove after drinking....

Under these circumstances, because the state has articulated an uncontradicted basis for determining whether each of the challenged images depicted the defendant before or during probation and because the defendant has failed to contest that the photographs do in fact depict her while on probation, we hold that the photographs contained the minimal indicia of reliability necessary to pass constitutional muster in the context of a probation revocation hearing.

December 24, 2011 at 02:00 PM | Permalink

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Comments

The burden of proof in a parole revocation hearing is preponderance of the evidence (meaning 51% likely). Facebook posting should have metadata to show recency. It should constitute a prior inconsistent statement by the declarant.

Should authorities get a court order to look at a Facebook account? Is Facebook a wire communication or conduct in the street? If you loudly discuss a bank robbery plan on the phone on the bus, and a police officer is going to work in his civilian clothes, does he need a court order to wiretap, or is loud speech on a bus public conduct? Should the defendant get a Miranda warning prior to the examination of a Facebook account? Has the defendant not heard? Facebook is used to find people, to embarrass, to get them fired, etc. Apparently not. Should her subjective expectation of privacy or an objective expectation of no privacy be argued? Why didn't the defense make these arguments or appeal the revocation?

I assume Prof. Berman posted this item because so many people are on Facebook, and subject to examination by the police.

Like this father:

http://www.nydailynews.com/news/crime/chicago-father-accused-duct-taping-daughter-devastated-lawyer-article-1.995867

Posted by: Supremacy Claus | Dec 24, 2011 11:26:43 PM

Facebook presents such an interesting challenge in terms of privacy. It will be fascinating to see how cases like these will play out and affect the future of criminal law.

Posted by: Dallas Car Wreck Lawyer | Dec 25, 2011 12:11:09 AM

While I do not believe that Facebook has made people stupider, it has made it easier for stupid people to demonstrate their stupidity.

Posted by: virginia | Dec 27, 2011 10:34:53 AM

well Dallas there is no privacy issue here. IF your stupid enough to put up photo's and information showing you comitting a crime on a PUBLIC portion of your facebook page...your BUSTED! now if govt access's a PRIVATE friends only poriton absent a WARRANT then the shoe is on the other foot! and the COPS are busted!

Posted by: rodsmith | Dec 27, 2011 12:41:20 PM

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