DueProcess FourthAmendment FifthAmendment CriminalProcedure HabeasCorpus Privacy
Is the Sixth Circuit Court of Appeals' lower standard of authentication for social media postings in conflict with other circuits, violating due process for 2.2 billion Facebook users?
QUESTION PRESENTED FOR REVIEW Question IThe Sixth Circuit Court of Appeals’ lower standard of authentication by third parties for social media postings being what they are claimed to be conflicts with those of the Second, Third, Fourth and Seventh Circuit Courts of Appeal and empowers police action, from arrest to conviction, on little more than a simple FaceBook picture, in violation of Due Process of Law under the Fifth Amendment. Is not this decision in conflict with those of other Unites States courts of appeal on an important question of federal law and Due Process that impacts the 2.2 billion active monthly Facebook users, and other social media users, sufficient for a grant of the writ of certiorari under Supreme Court Rule 10 (a) and (c)? Question II — The Court of Appeals found it was error to allow a police officer to testify to the behavior of FaceBook users establishing the time and date the photograph of someone with a firearm was made, the only evidence of that, but said it was harmless error. This was so even as it indicated that there may have been a problem of insufficient evidence of the time and date of the offense to sustain a judgment. Was it not error to find this crucial evidence harmless, after on another issue deeming it crucial, such that a new trial without it is required and the Court of Appeals’ ruling a departure from the accepted and usual course of judicial proceedings to call for an exercise of this Court’s supervisory power under Supreme Court Rule 10 (a)? Question II The Court of Appeals said that pictures on social media are not “statements” and thus not subject to the prohibition on hearsay nor the reliability requirements of the rule of corpus delicti requiring independent corroboration of statements of guilt. Yet social media is all about telling others about oneself, in all the forms of media the electronic world permits. Is it not a clearly erroneous interpretation of social media and its texts, audio, video and pictures to hold non-text postings to not be “statements” and vehicles of information subject to the traditional reliability testing of our common law, the hearsay rule, the rule of corpus delicti and Due Process of law? And a departure from the accepted and usual course of judicial proceedings to call for an exercise of this Court’s supervisory power under Supreme Court Rule 10 (a)? Question IV — A crucial part of this was the government’s contention that no fake or replica copies of the firearm claimed to be in the picture existed. But Farrad moved for a new trial after showing that such fakes were made and licenses, contrary to the assertions of the government’s expert firearms witness. Should there bit be a new trial when the government’s chief expert was shown to have made materially false statements on an issue central to the jury’s finding that Farrad possessed a real firearm in the picture? 1 LIST OF ALL