Trend Toward Online Mug Shot Publication Implicates Innocent as Well as Guilty

October 12, 2009 by David S. Seltzer

If you have read a Florida newspaper online recently, you may have noticed that several of them have started to publish “mug shots” of people who were arrested in the region. As a South Florida cyber crime criminal defense attorney, I have my doubts about this practice, and an Oct. 3 column from Carl Hiaasen at the Miami Herald does a good job of explaining why. Hiaasen wrote that newspapers are seeing an influx of revenue from publishing the mug shots, which is much needed in the struggling newspaper industry. But by publishing booking photos, rather than waiting for a conviction, he wrote, the newspapers are undermining an important tenet of American justice: the right to be presumed innocent until proven guilty.

As Hiaasen noted, not everyone who gets arrested and booked into jail is actually guilty, but the practice of publishing mug shots obscures that fact. An embarrassing mug shot implies guilt, particularly to viewers who aren’t familiar with the criminal justice system. However, if someone who was booked and published is later acquitted or has the charges dropped, he wrote, the newspaper is unlikely to publish it unless the person or the case has a high profile. And in the meantime, everyone with an Internet connection can see the photo, including the accused person’s boss, family, friends and neighbors. In addition to being embarrassing, this could have real, irreversible consequences like losing a job. As Hiaasen said, “the innocent are basically screwed.” While the practice is national, it’s especially widespread here in Florida thanks to open records laws.

Hiaasen’s column came on the heels of a Time magazine article on the same subject. As an example of the problem, that article used the story of a young woman from Tampa who was pulled over for a minor traffic violation. Once she handed over her license, she discovered that her driver’s license had expired, making her guilty of a misdemeanor. She renewed the license the very next day -- but her booking photo had already made it onto TampaBay.com. She said she was upset to be displayed next to alleged drug traffickers and drunk drivers, and concerned that her boss would see the photo. Both Time and the Herald noted that FM radio DJs have already taken to using the mug shots as fodder for morning drive-time comedy as well.

As a Miami cyber crime criminal defense attorney, I strongly agree that publishing mug shots is irresponsibly close to taking away the right to be presumed innocent until proven guilty -- a cornerstone of our legal system that serves as a safeguard against government overreaching. In fact, I believe they could even put people accused of certain crimes in danger. Registered sex offenders, who have been convicted, have been murdered and targeted for vigilante justice multiple times, including incidents in Maine, California and New York. It only takes one neighbor who recognizes the person in a mug shot to carry out an attack here in Florida as well. This is on top of the less violent but nonetheless life-changing consequences of public humiliation for the defendant, such as loss of jobs, friendships and opportunities -- all long before any conviction in a court of law.

The right to be presumed innocent until proven guilty is one of the oldest and most important parts of our legal system, acting as a check on the government’s power to imprison its citizens. As a Fort Lauderdale cyber crime criminal defense attorney, I can assure you that it’s also very important to my clients -- the people who our system was designed to protect. Newspapers have a First Amendment right to publish mug shots. But as Hiaasen wrote, it’s not exactly journalism and encourages people to draw false conclusions, bringing it perilously close to a conviction in the “court of pubic opinion.”