A couple months ago I argued a case in the California Supreme Court.  The Court recently issued their opinion in teh case, and they unanimously affirmed the lower court decision, which means I won.  I can't talk about the specifics of the case here, but just wanted to share the good news!

The Fourth Amendment states, in part, "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated."

The test for whether the Fourth Amendment applies to protect a particular place or circumstance depends on whether a person has a "reasonable expectation of privacy" in that place or circumstance.  For example, the Supreme Court has determined that a person has no reasonable expectation of privacy in one's trash once it has been placed on the curb.  That means the police can rummage through your garbage on trash day without a warrant and without probable cause.

Facebook, Myspace, Twitter and other social networking sites encourage their users to share information through their services.  Users can "check in" to where they are physically located at any moment.  They can post about what they are doing and who they are with.  They can upload photos and videos to document their activities.

These sites have created a culture, particularly in younger generations, that anything and everything is worth sharing.  It has also prompted people to become "friends" with people they barely know, sharing all their information along the way.  One can debate the merits of this culture shift, but my concern is its impact on our constitutional rights.  If people are willing to share this information online, how can one claim an expectation of privacy in it?

Although users can control their privacy settings to some degree, information posted online is never truly private.  The information posted on social networking sites is recorded, gathered for marketing purposes, and sold to advertisers.  The more people use these sites, and the more intimate and widespread their posts become, the less "expectation of privacy" anyone can truly claim, no matter what the circumstance.

Yesterday, the United States Supreme Court heard oral arguments in a case where the question is whether an eyewitness identification of the defendant should have been allowed in court. 

Eyewitness identifications are often believed to be among the strongest evidence possible.  If someone says they saw the defendant commit the crime, chances are most people will believe the defendant is guilty. 

Eyewitness identifications are also a common point of drama in crime stories.  A witness looks the defendant in the eye, points from the witness stand, and says, "He's the one.  I'm sure of it."

However, many studies have found that eyewitness testimony is notoriously untrustworthy.  Of 250 exonerations based on DNA evidence, 190 prisoners had been convicted based on mistaken eyewitness identifications. 

That said, identifications are generally only kept out of court when the police used unduly suggestive tactics to get the witness to identify a particular person.  Otherwise, traditional trial protections, such as cross-examination, expert testimony, and jury instructions, are relied on to protect against a jury wrongfully convicting someone based on a faulty eyewitness identification. 

Whether that will continue to be the case will be decided soon by the U.S. Supreme Court in Perry v. New Hampshire.