Concession-Seeking and Impeachment with Facebook, MySpace, Google+ and Other Social Media

Social media can provide valuable ammunition for concession-seeking cross-examination and the contradiction technique explained in Cross-Examination Handbook. With thanks to Eric Goldman who has followed the appellate decisions around the country that have considered impeachment with information gathered from social media. The following are a couple attention-grabbing examples of those appellate decisions, revealing the effectiveness of the contradiction technique utilizing social media.

Boudwin v. General Ins. Co. of America

Boudwin v. General Ins. Co. of America, unpublished opinion, 2011 WL 4433578 (La. App. Ct. 9/14/11) was an appeal from a defense jury verdict in an auto accident case. At trial, two plaintiffs claimed physical disability and loss of enjoyment of life. The appellate court had no difficulty upholding the jury’s decision that plaintiffs were not entitled to any damages because “(t) record clearly shows that neither Jessi nor Lee have experienced any significant limitations or impairments as a result of the injuries they sustained in the May 31, 2008 accident.”

While both plaintiffs testified on direct that they were in pain after the accident. On cross, defense counsel cross-examined them with their Facebook pages. The court noted that Jessi conceded when faced with her entries that “she runs, or rather jogs, regularly to stay in shape, and even attempted to do an exercise program called P9OX with a friend, which she described as being ‘really tough.’…” The Court described cross of Lee in this way: “. . . Lee acknowledged several entries from his Facebook page where he reported frequently ‘working out’ and also playing sports such as basketball, tennis, ‘ultimate Frisbee,’ and softball, sometimes engaging in multiple sessions of sporting activities in a single day. He further acknowledged that he wrote on his Facebook page that he had participated in a softball tournament in the month before trial,. . .”

Embry v. State

In Embry v. State, 923 N.E.2d 1 (Ind. App. 3/8/10), the defendant was convicted of felony domestic battery by beating his ex-wife and the Court affirmed the conviction. The defense in an effort to establish self defense cross-examined the ex-wife about statements she had posted on MySpace about the defendant prior to the alleged battery:

BY [DEFENSE]: … Prior to Au-April 22nd, 2008 had you ever expressed or communicated in any way that you wanted your ex to die a slow painful death?
A I believe you’re referring to my “My Space” …
Q I’m not-I-no, I’m not referring to anything. I’m just asking you a simple question: if you’d ever expressed or communicated in any way that you wanted your ex-husband, Mr. Embry, to die a slow painful death?
A I see it right there on your desk.
Q Okay.
A It’s my “My Space” blog.
Q Okay, did you say it?
A I typed it.
Q Okay. But the answer is, did you say it? I mean is that your communication.
A I typed it.
Q Okay. And did you ever express um, or communicate in any way that you wanted to be present and dance the cha-cha around his slow painful death?
A It’s all there in the blog.
Q Okay. The answer’s a simple yes or no. You said it; you’ve communicated it some way, did you?
A If you want to put that blog there, I …
Q I’m just asking you a simple question.
BY COURT: Ma‘am, will ya just answer the question yes or no?
A Yes, I did.
Q Did you ever refer to Mr. Embry or communicate in any way that he was a worthless bag of monkey shit?
A Yes.
Q Did you ever refer to him as dog piss?
A Yes.
Q Did you ever refer to him as a worm puke stale crusty moldy inhuman horrible human oxygen sucking moron?
A Yes.
Q Did you ever communicate the desire, that because he’s older and more stupid than you, he will die way before you do?
A I believe I said please assure me that it was possible that he would pass before me.”

Get Cross-Examination Handbook for a complete explanation of the contradiction technique.