Facebook Use in PFA Cases: Evidence Issues

PFA No-Contact Orders

Pennsylvania's Protection from Abuse Act authorizes courts to issue broad protection from abuse (PFA) orders. PFA orders are to restrain individuals who have abused or threatened to abuse their spouse, household family member, or another intimate partner. PFA orders may protect those persons by evicting the restrained party from the home. PFA orders may also require the restrained party to give up child custody and to provide spousal and child support. PFA orders also commonly include no-contact terms prohibiting the restrained party from having any communication, whether in person or otherwise, with the protected party.

PFA No-Contact Criminal Penalties

Pennsylvania's Protection from Abuse Act authorizes the courts to enforce their PFA orders with criminal contempt proceedings. The protected person or law enforcement may charge the restrained party with violating the PFA order. If the court finds the restrained party did in fact violate the PFA order, then the court may hold the restrained party in criminal contempt. Criminal contempt carries a fine of up to $1,000 and imprisonment of up to six months. PFA orders are serious business. Violating a PFA order is a serious crime that can cause a restrained party to lose a home, job, career, finances, and reputation.

PFA No-Contact Orders and Facebook Use

Various forms of Facebook use and other social media use can violate a PFA no-contact order. Restrained persons may mistakenly assume that a PFA no-contact order applies only to in-person contact, telephone contact, and maybe also emails or even text messages. Judges write PFA orders to meet the parties' specific circumstances. Depending on the specific PFA order's terms, all or any of those communication forms may violate a PFA order. But so, too, may Facebook private messages, public posts, friend requests, and even likes. See this media report of the arrest and PFA contempt charge against a man who reportedly liked his protected ex-girlfriend's Facebook photos. Another public report indicates that following a protected person on Pinterest or sending a Google Plus invitation to a protected person can also lead to contempt charges.

Facebook Use Can Be Evidence in PFA Contempt Hearings

Plainly, Facebook use can be evidence in a PFA contempt proceeding. A person whom a PFA no-contact order protects may construe a Facebook like, message, or post as the restrained party's attempt to annoy, harass, threaten, or otherwise unduly influence and abuse. If the Facebook use is indeed the restrained party's effort to communicate with the protected person, then that Facebook use could violate the court's PFA no-contact order. A protected person may charge the restrained party with violating a PFA no-contact order. So, too, may police. When a protected person or police charge a restrained party with PFA contempt, they may use Facebook evidence to prove the charge. Take as an example of the contempt risk, one Pennsylvania case in which the appellate court affirmed a contempt finding, $300 fine, and ninety-day jail sentence for a restrained man who texted his protected ex-spouse.

The Burden of Proof in PFA Contempt Hearings

A restrained party whom a protected party or police charge with violating a PFA no-contact order through Facebook use can have several ways to defend the charges. A charge is not a conviction. Expert legal representation from Pennsylvania criminal defense attorney Joseph D. Lento can help beat the contempt charge. The person bringing the charge, whether the protected person or the police, has the burden to prove the charge. Because the charge is one of indirect criminal contempt, a crime punishable with imprisonment, the person bringing the charge must prove the charge beyond a reasonable doubt. An effective defense to the contempt charge needs only to raise a reasonable doubt. Aggressive attorney defense of the charge may well do so.

Defending Facebook Use in PFA Contempt Hearings

Intent as a Defense. As a skilled and experienced criminal defense counsel, attorney Lento may well show reasonable doubt about a contempt charge based on Facebook, in any number of ways. Facebook messages, likes, invitations, and posts can be for individuals or for broad or narrow groups, depending on the user's intentions. A restrained party who intends a Facebook message, like, invitation, or post for a third party may inadvertently and innocently share the communication with the protected party. Evidence of the restrained party's inadvertent and innocent transmission within a Facebook forum can readily raise a reasonable doubt about a contempt charge. The restrained party may only need the party's own testimony, the testimony of the post's intended recipient, or the testimony of an expert on Facebook function and use.

Automated Functions as a Defense. Facebook and other social media platforms also have hidden automated functions about which users are often not aware. Facebook may automatically generate posts, requests, invitations, or other communications that can look as if they were from the restrained person and to the protected party. When a protected party claims to have received a Facebook message from the restrained party that appears so but that the restrained party did not in fact send, the restrained party may only need that party's own denial and the testimony of a Facebook expert on the automatic function, to raise a reasonable doubt about the charges.

Other Users as a Defense. Other users, including family members with access to the restrained person's account or hackers, may also make Facebook posts that appear to be from the restrained party but are, in fact, not. Once again, the restrained party's expert criminal defense attorney may raise a reasonable doubt about the contempt charges by presenting the restrained party's testimony, the testimony of the family member users, or the testimony of an expert on hacking. Skilled investigation, preparation, and presentation of a defense can defeat Facebook-based PFA no-contact contempt charges.

Facebook Authentication Issues in PFA Contempt Hearings

Skilled criminal defense counsel may have other ways to raise a reasonable doubt about PFA no-contact contempt charges based on Facebook use. Pennsylvania Rule of Evidence 901 requires a party offering documentary evidence like a Facebook post to “produce evidence sufficient to support a finding that the item is what the proponent claims it is.” The law calls this evidence rule the authentication requirement. A party must authenticate the documentary evidence that it offers. Yet Facebook and other social media posts can be notoriously difficult to authenticate. Griffin v. State, 419 Md. 343 (Md. 2011) is an example case in which the court ruled that the prosecution had failed to authenticate the defendant's alleged MySpace page. The defendant had not admitted the page to be hers, and the only witness to the printout was a detective who had no firsthand knowledge of the page's creation or use. Plenty of people, innocently or otherwise, could have misused the restrained party's Facebook access. Authentication challenges are another way to defend a PFA contempt proceeding based on a Facebook post.

Other Facebook Evidentiary Issues in PFA Contempt Hearings

Pennsylvania Rule of Evidence 1002 further requires a party offering documentary evidence to have the original writing or a good excuse for not having the original. A copy ordinarily will not do. The law calls this rule the best evidence rule. Copies can produce anomalies not present in the original. And a devious party or other person could have altered the copy from the original. Printouts, screenshots, or other reproductions of the original Facebook post may not be admissible under the best evidence rule.

Hearsay is also generally inadmissible, although with a large number of complicated exceptions. Hearsay is an out-of-court statement used to prove the truth of the matter that the statement asserts. A restrained party's post to a Facebook page that the restrained party does not control may well be hearsay because the page remains the owner's out-of-court assertion that the restrained party made the post. See this American Bar Association article on the hearsay, authentication, and other evidentiary challenges to offering Facebook and other social media evidence. As a skilled and experienced criminal defense trial lawyer, attorney Lento knows how to raise appropriate evidentiary challenges to unreliable Facebook and other social media evidence.

Rely on Expert Criminal Defense Representation

The above discussion shows that you can successfully defend PFA contempt charges, including charges based on Facebook or other social media posts. Yet, the above discussion also shows how a successful defense can depend on skilled investigation, preparation, and advocacy, combined with a deep knowledge of the substantive, procedural, and evidentiary laws.

Premier Pennsylvania criminal defense attorney Joseph D. Lento and the Lento Law Firm are available for your aggressive and effective defense in PFA proceedings. Attorney Lento has substantial experience successfully representing clients in PFA proceedings, when those clients have everything at stake. Don't attempt to handle a PFA proceeding, especially one involving a contempt charge, on your own or with inexperienced counsel. Retain the best available PFA defense lawyer. Call 888-535-3686 to schedule a consultation, or use the online service.

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Attorney Joseph D. Lento has more than a decade of experience successfully resolving clients' criminal charges in Philadelphia and the Pennsylvania counties. If you are having any uncertainties about what the future may hold for you or a loved one, contact the Lento Law Firm today! Criminal defense attorney Joseph D. Lento will go above and beyond the needs of any client, and will fight until the final bell rings.

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