"The Role of Social Media in Sentencing Advocacy"

The title of this post is the headline of this new article from the New York Law Journal. Here is how it begins:

Embarrassing Facebook photos and regrettable MySpace statements are starting to become commonplace in pre-sentencing reports and disposition hearings. At the same time, defendants and their advocates are acknowledging the power of social media as a tool to generate mitigating evidence.

While there seems to be an unending supply of negative and inculpatory postings in social networking profiles, there is also the potential for uncovering a humanizing portrait for the defense to present at sentencing.

Day-in-the-life videos are a staple of tort practice to support damage claims and in criminal prosecutions to showcase a victim's life and character. The multimedia diaries and correspondence that comprise Facebook and MySpace profiles have similar potential for the defense. Since many of the accused entering the criminal justice system will be accompanied by social media, defense counsel might need to review their social space, along with medical and school records and other background information.

A preliminary audit of a client's online profile serves two purposes: (1) to identify evidence that might show up in a probation department pre-sentence report; and (2) to provide an instrument for marshalling positive information about the client. Still, social media is a two-headed coin and the first toss is usually tails.