Hypothetically, if Vladimir Putin opened fake social media accounts in your name to ruin your family law custody case, what would happen? An unfortunate Florida woman, who was recently sentenced to five months in jail for a few posts on her Facebook page, found out the hard way.
The Father, Timothy Weiner, had been warned. The judge in his custody case ordered him to stop harassing his ex-wife on Facebook. The family court judge issued two orders to keep any information about the case off social media and prevent family members from publishing information about the custody action on social media.
“Neither parent,” Pasco Circuit judge Lauralee Westine wrote in her order after the September hearing, “shall disparage or threaten the other parent on social media.”
But a week later, a photo of his ex-wife surfaced on a father’s rights Facebook page called “Mothers who abuse kids.” Weiner hit the “like” button. Fast forward to this summer. The Father’s new wife, Jessie Weiner, who is not a party to his custody case, was not served with the order.
In one of Ms. Weiner’s Facebook posts, sensitive family court documents concerning her Husband’s child from his previous marriage were posted. Court records indicate that someone on Weiner’s Facebook even shared an old news article about when her husband was jailed over a Facebook post.
The uploaded Facebook documents had to do with the ongoing family law custody case between Weiner’s husband and his ex. The family judge was not amused, and took swift action. She entered an order directing Ms. Weiner to show cause why she should not be held in indirect criminal contempt for failing to obey her orders.
Ms. Weiner received the order to show up in court the day before the 4:30 p.m. hearing that had been scheduled. Her lawyer, whom she retained on the same day as the hearing, argued for dismissal, for the judge’s disqualification, and for a continuance.
“Next thing I know, I hear five months in the county jail. “No matter what I said, I was guilty.”
The family judge denied all of her motions, found Ms. Weiner guilty of indirect criminal contempt, and sentenced her to five months’ confinement in jail for contempt of court.
What if, as Ms. Weiner argued, the social media accounts were not authentic, i.e. she didn’t make the Facebook posts?
Florida Authenticity and Social Media
I’ve written about the widespread use of social media in society, and how that impacts family court cases. Especially when it comes to authenticating documents in family court.
Some exhibits are so trustworthy they don’t even require a witness to authenticate. Evidence Rule 201 lists matters which a court must judicially notice, meaning a judge does not have discretion but to admit indisputable evidence.
The list is short, and includes laws of the Congress and Florida Legislature; Florida statewide rules of court, rules of United States courts, and U.S. Supreme Court rules.
Rule 202 includes even more matters, but also provides judges leeway in deciding whether or not to take judicial notice. For example, the statute allows a court to take judicial notice of facts that are not subject to dispute because they are “generally known within the territorial jurisdiction of the court”, and facts that are not subject to dispute because they are “capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.”
But with the Russian election scandal, and the widespread use of fake social media accounts, you have to start to wonder whether the genuineness assumption of evidence in family court still stands.
Governments manipulate photographs. It is not unheard of for spouses to hack computers and borrow smartphones to impersonate their owners’ texts. Anyone can set up a Facebook page, email, Instagram, or twitter account.
The increasing use of electronic evidence at trial, and the ease with which it is impersonated and manipulated, pressures us to bolster foundational evidence more than ever. Unfortunately for Ms. Weiner, she was jailed before she could even challenge the evidence.
What’s on your mind?
The Second District Court of Appeals had no trouble quashing the contempt order and freeing Ms. Weiner . . . after she served a month in jail.
First, the order violated Ms. Weiner’s due process rights because she was not subject to or served with the court order that she was accused of disobeying.
Second, the order to show cause was never served on Ms. Weiner within a “reasonable time allowed for preparation of the defense,” as required by Florida Rules of Criminal Procedure. Ms. Weiner’s name did not appear in the order’s service list, and it is undisputed that she received the order the day before the hearing and did not engage counsel until the morning of the hearing.
Finally, the trial judge should have disqualified herself because the contempt conduct involved disrespect and criticism of the judge.
This rule assures that a person cited for a contempt of court which involved a criticism of a judge, would not be tried before the judge who was the subject of the criticism.
The opinion is here.