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Law Update for Border Patrol Agents & Customs & Border Protection Officers Southern District of California & Yuma Sector November 2009 BPAs and CBPOs are advised of a growing trend in which defense attorneys are using off-duty statements posted on the internet to cross-examine law enforcement officers in court. This includes messages posted by off-duty officers on Facebook, MySpace, Twitter, YouTube, internet chat rooms, etc., as well as e-mail, text messages, answering machine greetings, and voice mail messages. This includes jokes, photographs, and statements made or transmitted by officers in their private capacities, even if there is no mention of their affiliation with law enforcement. Further, this issue is coming up in federal and state courts all over the country. Under the Federal Rules of Evidence, the credibility of a witness may be attacked on cross-examination by evidence of specific instances of conduct concerning the witness' character for truthfulness or untruthfulness. See, Rules 404 and 608. This includes the contents of writings, recordings, or photographs that may be relevant to the witness' character or credibility. See, Rules 1007 and 401. For example, in a recent New York prosecution for carrying a loaded firearm, the defense attorney impeached the arresting police officer using statements posted on the officer's MySpace page in which the officer stated that he was watching the movie “Training Day” in order to brush up on proper police procedures. Further, the defense attorney found several comments that the arresting officer made on YouTube regarding a video clip of a handcuffed suspect who was punched. The defense attorney cross-examined the arresting officer using comments that the officer posted under the video clip: “If you were going to hit a cuffed suspect, at least get your money's worth...” (The defendant was acquitted of the firearms charge.) In another case, an Indiana State Trooper was investigated regarding photographs and statements he posted on his personal FaceBook page. One photo showed the officer pointing his firearm at another officer's head while holding a beer; he also posted photos of his crashed patrol vehicle with jokes about the cause of the accident. He described his job as a “garbage man” who picks up “trash” for a living. In a local case involving a Border Patrol shooting, a firearms expert witness was disqualified because of extremist statements he made on a civilian militia website. BPAs and CBPOs are cautioned to exercise discretion when making statements on the internet that may be taken out of context on cross-examination and used to smear an officer's credibility, integrity, or character. Any statements about a particular defendant or case should be avoided, and officers should expect to be cross-examined about any comments that may indicate bias, prejudice, racism, sexism, disrespect for aliens or prisoners or the community, etc. Further, in cases involving the use of force or an allegation of excessive force, officers should expect to be cross-examined about their on-line statements regarding firearms, police practices, police policy, or the criminal justice system, or their use of street slang, cop jokes regarding use of force, profanity, etc. Bragging, exaggerating, or lying on-line, or any trash talk about the job that's retrievable by the officer's name, may become the basis for cross-examination in the future. The defense bar is monitoring the internet in every case, and a Google or Yahoo name search has become standard practice at a minimum. A copy of a recent newsletter from the Los Angeles County Sheriff's Department (“Impeachment by Social Network Websites”) is attached for further reference. A similar article (“Easy Way to Destroy Your Credibility and Your Career”), issued by the San Diego County District Attorney's Office, is available upon request. Any questions regarding this subject may be referred to the CBP Assistant Chief Counsel's Office.
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