If we are speaking of individual criminal cases and are concerned with the system generally, my first instinct is unabashedly Luddite: No good can come of this. The ratio of truth-to-posting-volume is poor. Criminal cases press the most worrisome buttons in the polity: outrage, gossip, prejudice, and posturing. Of course most criminal cases are fairly straightforward on their facts, but it will be the more controversial or factually ambitious or politically or culturally charged ones that will press these buttons the most, and the proper goal of the system to circumscribe and define the relevant facts will be thwarted. And it will raise and then disappoint expectations among those who read postings that reinforce their original perceptions about these cases.

My second instinct is consistent with the first in terms of the truth-to-posting-volume ratio but somewhat different in terms of effect: At least in complicated or equivocal cases, there is a zero-sum game between the two sides, and the distracting effect may help one side more than the other. Discerning the effect depends on how the information or misinformation manifests procedurally. For example, internet information may affect a jury pool in bad ways. Worse yet, we already know that the trial jury itself (maybe also the grand jury) is at risk of illicitly getting involved in social media. In the ideal abstract this is bad for the system, but it will rarely be symmetric in its effect on the parties, and, other things being equal, distortions favor the defense because the defense wants to upset the narrative of straightforward facts, jury deadlocks favor defendants, and even when a defense lawyer complains of prejudicial publicity that favors the state, the distortive or disruptive effects of litigating that issue tend to favor defendants, in part because it makes the trial more expensive for the state.

My third instinct is cautiously positive: Defense lawyers are often very cash-strapped, especially those serving indigent clients. Gideon v. Wainwright resources are limited, and not just for lawyers’ fees but equally so for crucial investigative expenses. Moreover, the Brady v. Maryland obligation of prosecutors to turn over exculpatory evidence is all too often ignored. So a defense lawyer could look to social media as a source of leads, and even induce responses from all manner of sources. But the defense lawyer must avoid the trap of expecting these media to turn up evidence per se. Rather it might turn up rumors and innuendoes that could in turn lead to true evidence, and so the cost-benefit analysis of the lawyer turns on her ability to be ruthlessly judicious in sorting out what she sees.

Robert Weisberg is the Edwin E. Huddleson, Jr. Professor of Law and the Faculty Co-Director Stanford Criminal Justice Center at Stanford Law. Prior to joining SLS, he was a consulting attorney for the NAACP Legal Defense Fund and the California Appellate Project.

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