2013 Symposium: Are You Really Innocent Until Proven Guilty?

Cartwright:  Legally you are still innocent until proven guilty by a jury of your peers.  However, as we’ve seen with so many high profile cases, you’re judged and either convicted or exonerated by the court of public opinion long before you come to trial.  And of course, the media fuels the fires of this for ratings.  They love sensational trials where they can tear people down.  They don’t care whether someone is innocent or guilty or how their coverage impacts the case and the people’s lives.  All they want is ratings and sensationalism.  And with that comes money! 
Arrest records are a matter of public record.  Anyone can go to the courthouse and watch the proceedings of people who are marched out before the judge to get bail.  Is it right?  Well, if you don’t want your mug shot out there, don’t break the law, commit a crime, and get arrested.  I find it interesting that these perps who think they’re so tough and just killed someone have to cover their head when they’re doing the perp walk.  If you’re so tough and so proud of what you’ve done, why are you covering your face?  Let’s let everyone see it.  But then we have to consider the person who is wrongfully arrested and accused or who is arrested for a crime committed in self defense.  What do we do with these people?  Well, these people aren’t usually hiding their faces.

Does it create a prejudice with some people?  Sure.  Is that prejudice enough to prevent them from getting justice?  I don’t think so.  Does that prejudice impact their daily lives?  Sure.  Is this enough to do away with putting their mug shots online?  Probably not.  I think the more important issue is the impact the media has on the legal system or the influence the media tries to have on the justice system.

North Carolina:  All of a sudden, you see or view an online mug shot of a relative, friend or acquaintance in an orange jumpsuit, with a disgruntled countenance, and you wonder, how did that happen?  Is that mug shot legal?  He or she would never have committed that crime!  Even if you don’t know the person, you have to question, can a picture like that be released without the benefit of a trial with either a conviction and sentencing, or an acquittal, exoneration and release? For those who have committed petty crimes and have been released or done community service, or for those who have committed serious crimes for which they have served time and have been released, their pasts come back to haunt them with an easily accessed on line mug shot. Even more exasperating are mug shot releases of someone who has been fully exonerated or has had their records removed, only to see them once again on a website.   The use of mug shots in such a public manner raises the question of legality of such use, and it appears that Open Records laws governed by each state determine public disclosure.  Whether mug shots are public records and are subject to disclosure can vary from state to state.  Some jurisdictions exempt records that are part of an ongoing law enforcement investigation, but courts have not fully accepted such exemptions, and many States’ Attorneys Generals agree that mug shots should not be exempt from disclosure in spite of any ongoing law investigation.  A small number of state jurisdictions prohibit disclosure of mug shots such as South Dakota, unless the mug shot suspect is at large, while other state jurisdictions have easy access for website publication.  Once the photos are released, they are considered public record and can continue to be used.  In spite of a mug shot status as a public record, some individuals have filed lawsuits against websites utilizing their mug shots.  Their allegations concern invasion of privacy.  Only under certain variations of invasion of privacy are mug shot victims exonerated.  One variation that pulls some weight is misappropriation, which states that the use of someone’s likeness to endorse or promote a product or service without his or her permission is prohibited.

It appears that the power to prevent the use and distribution of mug shots online remains with each state’s legislature.  The state of Oregon passed a law that required websites to remove mug shots through written requests, when the arrest resulted in acquittal, or as a result of a record of expunction (removal). A similar legislative effort was launched in Florida, but has been unsuccessful thus far.

Without either the proposal of future laws governing mug shot online distribution or a challenge to the First Amendment (still protects newsworthy matters) concerning the use of mug shots, Open Records laws will continue to rule the release of mug shots to internet sites.  Such exposure will continue to alert prospective employers, family members, and significant others to the status of the person involved.  Mug shot publication is just another example of once something is released into the public domain through the internet, there is little that can be done to put it back under wraps. The best advice is to avoid creating any public record that cannot be justified.

Orlando:  Making arrest records public is intended as a check against the arbitrary use of police powers. In a world where no one is required to provide notice of arrests, there would be little recourse against police commissioners imprisoning political opponents, or police offers arresting the owners of businesses that compete against their families’ businesses. That, coupled with the titillating effect an arrest has on gossip, is why newspapers publish police blotters.

The age of the internet has brought about a new twist on this age-old practice. Instead of appearing in the local paper where it would be read only by nosy neighbors, arrest records, including mugshots, are being posted on-line, where they are fully searchable by location, gender, crime, and even by name. Employers can discover quickly if you have been arrested for any reason, and, presumably, this would be a reason not to hire you.

While all mugshot posting websites include a disclaimer that the persons appearing in this shot are innocent until proven guilty, this is likely an instance in which people are being punished for being suspected of a crime. Worse yet, many of these websites will not remove an image without being paid a fee. These web hosts are the real criminals, engaging in an unsophisticated effort to blackmail members of the public who may or may not have made an error in judgment. Our libel laws contain protection for private citizens and require that organizations publishing hurtful information about them demonstrate an overwhelming public good served by such publication. The time has come for our court system to do something for those it claims to serve and protect, and award a libel damage claim to anyone who has had an arrest record picture posted on the internet.

South Carolina: You get charged with a crime and you are booked into the local jail; they take your mug shot and post it to their site. Within 24 hours someone has picked up that mug shot and sold it to several different websites. Now your picture is all over the internet. What happens when you are released? What happens after your charge is dismissed? Your mug shot remains on the sites.

We all know that most employers will Google a new potential employee. If they Google you and your mug shot shows up do you think they will hire you? These mug shot sites don’t follow up on the charges; they don’t let the public know the charge was dismissed. Your picture is there with the charge listed forever! This is incredibly unfair for everyone. First it’s unfair for the accused because they are ONLY accused, not convicted! Second it’s unfair for the public because they are passing out information but not giving the whole story. It’s not fair to anyone.

In my opinion you should have your mug shot taken when you are booked. However, until you are convicted that picture should stay in a private system and should only be released if you are convicted of the same charge you were booked on. Your name will become public record but at least your picture won’t be smeared all over the internet.

Honestly, I’m shocked that the mug shot websites haven’t been sued for slander. After your charge has been dismissed you are no longer accused of that charge. Yet, your picture stays on the site and getting it off will cost you dearly in both time and money.

Michigan:  Yes, we do judge people by the media coverage.  Have you ever seen a mug shot where you think the person is innocent based on the photo?  I think it is all right to publish mug shots of 2nd or 3rd time offenders and career criminals.  We should however have some level of crime that triggers a mug shot.  Do we really want to publish a mug shot of a high school student that stole socks from WalMart?  Yes, maybe we do.  Might get the other shoplifters to think about it.

Washington, DC: One of the basic tenets of American legal system, as well as most legal systems in the world, is presumption of innocence. Unless a person is convicted by a judge or by a jury of peers of a crime, he or she is considered innocent in the eyes of law. However, with the progress of technology, almost no part of peoples’ lives is left private; not only do people themselves willingly post the minutiae details of their lives on such social media outlets as Facebook and Twitter, but the media also seems to be all too willing to share all kinds of information about people with the rest of the world.

A simple online search can yield astonishing results on just about anyone in the country. If somebody was arrested for some reason, proved innocent later, and had his or her records expunged—all the information regarding this occurrence is still available to anyone interested for years to come. It is not difficult to imagine what kind of consequences the availability of this kind of information can have for an individual.  First, it affects every aspect of personal life: dating, marriage prospects, relationships with neighbors and colleagues, and general standing in the community. Second, and probably most importantly, this kind of information can negatively affect a person’s future employment or present promotion opportunities.

The First Amendment protects freedom of speech. As such, the internet has been one of the essential outlets to provide free and uncensored information to people. However, there is a thin line between freedom of speech and rights of individuals to privacy. Search engines should recognize the consequences an individual can suffer due to the availability of this kind of information and act responsibly.

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