The Right to Remain Silent and Social Media: Rap It Up

By September 25, 2015Legal Advice

giving police a statementYes, I meant “Rap”.

But we’ll get to that in a minute. First, let’s talk about Witness Intimidation.

You’ve seen it in movies like, “The Godfather”, “Goodfellas” and a host of other Hollywood productions. In the TV show, “The Sopranos”, there are numerous scenes depicting a juror or potential witness in an otherwise innocuous situation, like waiting in line at the store, suddenly confronted by a total stranger, who never says anything that can be considered a direct threat, yet most definitely delivers a clear message: Keep your mouth shut.

What they don’t do is post it on Facebook, for all the world to see, complete with descriptions of potentially heinous outcomes should the warning go unheeded.

Yep. That actually happens and it’s a nightmare for a defense attorney to deal with. It’s damn near a public admission of guilt.

Sometimes it’s not the defendant doing this but a friend or a family member. Maybe they think they’re helping, or maybe they’re just seeking attention, but they are certainly doing major damage that can sink the whole ship. And they are opening themselves up to charges of their own. Witness Intimidation, Terroristic Threats, Witness Tampering and Conspiracy are all real crimes that carry serious penalties, and digitally documenting them is incredibly easy for the authorities to do.

You may as well buy a billboard that says, “Arrest Me”, or, “My friend is guilty.” It adds weight to the prosecutions case and reflects badly on the defendant in the eyes of the Judge.

And it’s just plain stupid.

Even more stupid is threatening the arresting officers.

Threatening a Police Officer is an extremely serious charge. Doing it online is just asking for trouble. Making a rap music video and posting it on YouTube–while your trial is still in progress, no less– depicting how you might torture and kill said police officers, pretty much rules out any hope of a successful defense after that. It’s gonna be really hard to make the case that the defendant is not a hardened criminal bent on killing when they actually make a rap video depicting themselves as hardened killers bent on murdering the Police.

Perception is a part of the court process. It’s why people who never dress up show up in court in a suit and tie. It helps in how the Judge and Jury perceive the defendant when they look like they care enough about their appearance to show respect for the court.

But making a rap music video, naming the actual arresting officers while making threats, well, even Pierre Cardin would have a tough time dressing that up.

Finally, the absolute dumbest thing a defendant can do is post a video of themselves showing off their ill-gotten gains and actually bragging about their crimes. At the end of the video, just say, “Now, come arrest me.”

Yes, all of these instances I’ve cited have actually occurred.

I do understand that during a criminal trial with serious charges, passions and emotions run high. Friends, lovers, family members all rally in some way to keep their loved one from being locked up. It’s also understandable that in the heat of the moment, things might be said one regrets later, but making a video does not constitute “the heat of the moment”. It’s a planned act calculated for effect, and if it can be proven that effect is to alter a criminal investigation, or the outcome of a trial, it can result in major headaches for everyone involved. Just the ramifications in terms of the defendants character being questioned can impact a case.

So if you are in trouble, do yourself a favor: Turn off the camera, step away from the keyboard, and as they say in “The Sopranos”,  keep your mouth shut.

(Addendum: The point of this piece is not the right to free speech. Some of the instances raised in fact involve free speech. But we’re talking about mounting a successful defense in a criminal case, not the right to incriminate oneself, because everyone has that right. “Anything you say can and will be used against you in a court of law.” That includes social media.)

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