BizTech Law Blog
Did you know that the YouTube video you just posted may be used in court to determine your character? In a Delaware case, Gallaway v. State, a video of a man using mouthwash as a decongestant may have been the difference for the jury, which found him guilty of murdering his daughter. The father claimed he was performing stretching exercises with his daughter when she slipped and fell on the floor. A few days after the fall, she died from suspected non-accidental trauma.
As part of his defense, the father brought character evidence that he was depressed and suicidal every day since his daughter's death. The prosecution attempted to rebut this evidence with the defendant's YouTube video. Under the rules of evidence, the prosecution is not allowed to bring character evidence against a defendant because such evidence is usually over-valued by a jury and it too prejudicial to the defendant. One exception is when the defendant first raises character evidence; only then may the prosecution bring evidence to rebut the claims of the defendant.
Here, the judge found the video relevant to rebut the defendant's claim that he was depressed every day. The defense unsuccessfully attempted to argue that the video was 6 months after the daughter's death and depicted a part of the grieving process rather than the father's character. The judge held that the relevance of the video outweighed any potential prejudice it might produce.
The case provides an important lesson: Be careful what you post online. What may be a brief, spontaneous choice may someday be used as evidence of your character. Even if you do not use YouTube, this lesson applies to other forms of social media as well. Every status update, post, share, or tweet may be used as evidence of your character. Next time you go to post something to one of your social media accounts, be mindful that one single post may be used as evidence to your character as a whole.
If you have any questions regarding what is appropriate to post online, or if you are an employer who is looking to develop or implement a social media policy, now is the time to take action. Contact John Mashni at jmashni@fosterswift.com or 517.371.8257.
