Should Judges Consider Facebook Posts at Sentencing?

About a month ago, Tomasz Maciaszek stood before Illinois Judge Amy Bertani-Tomczak and apologized for a 2008 reckless driving incident that left a teenager dead. He told the judge he's been "haunted" by the girl's death, secluding himself in sorrow.

But prosecutors refuted those statements, presenting the judge with print-outs from Maciaszek's Facebook page.

Was this appropriate? Should judges consider Facebook when sentencing?

Judge Bertani-Tomczak doesn't think so. She returned those print-outs earlier this week, reports the Herald-News, subsequently telling the parties that she had "not seen anything or looked at anything."

She chose to take Maciaszek's apology at face value, pointing to a convicted defendant's right to give a final statement. She called it "the law of the land."

This very well may be true, but is that right absolute? Doesn't the prosecution have a right to refute mitigating evidence? Shouldn't a judge want to know when a convicted defendant is falsely showing remorse?

Notwithstanding potential foundation and hearsay issues, Facebook provides the opportunity to do both of these things.

Prosecutors have not spoken about the content of those print-outs, but it's not hard to speculate. Maciaszek could be pictured partying, or he could have checked-in at other locations. He could have made statements about the case and his guilt.

All of this is arguably relevant.

Ultimately, Facebook has changed the way we practice law. We use it to vet jurors and track down witnesses. It factors into divorce cases and mistrials. Why shouldn't judges use Facebook when sentencing?

Related Resources:

• Googling Potential Jurors: The Legal and Ethical Issues Arising from the Use of the Internet in Voir Dire (FindLaw's Writ)
• Keeping Jurors From Straying Electronically (FindLaw's Technologist)
• Social Media Fishing Expedition Denied in NY Court (FindLaw's Technologist)