The Role of Social Media in Your Criminal Defense Case
By now, we all know that whatever we post online is public information, now and forever. However, that fact is especially true if you are arrested and a prosecutor is building a criminal case against you. Anything you have ever posted, and especially anything posted within a few hours before your arrest, will probably be ascertained and possibly used as evidence in court to get you convicted. To better understand what you’re up against, here is the law regarding the role of social media evidence in court, an example case of a social media account being used in a criminal case, and what you can do to prevent a social media post from ruining your day in court.The Law
For the government, the law makes obtaining any social media evidence a simple procedure. After your arrest, the police may request the information directly from you during interrogation. They can also apply for a search warrant to your personal electronic devices as well as a disclosure of your information from any third-party social media company. It is, however, illegal for a prosecutor to inappropriately access online content, plant evidence, or to pretend to be someone they aren’t in order to confront a defendant or in an effort to break an alibi. As a defendant, it is not illegal to delete your own incriminating posts or pictures, but it is almost always unadvisable as this act in an of itself can cause further suspicions and punishments.
The Evidence
When it comes to relevant social media evidence, this includes any information that is stored on the servers of social media sites such as Facebook, Twitter, Instagram, Snapchat, Tinder, Yelp, and anywhere you may have “checked in” (i.e. your local bar). Social media can be used in litigation to reveal a person’s state of mind, evidence of communication, evidence of time and place, and evidence of actions. The information prosecutors will be looking for to use in their case against you includes your profile, status updates, pictures (your own as well as your acquaintances or any you are “tagged” in), network of friends, daily habits and routines, interests and hobbies, comments on other people’s boards, location updates, and activity timelines. Prosecutors will also make note if you deleted anything incriminating against yourself in an effort to appear innocent. This act may be interpreted as “destroying or deleting evidence” and can severely damage your case and cause you to face additional punishments. Once social media information is obtained by prosecutors and before it can be presented in court, it must be authenticated and is subject to the standard evidentiary rules. These rules include relevance, hearsay, originality, and prejudice standards.An Example Case Where Social Media Was Used as Evidence
In 2013, an officer discovered Instagram photos of a known criminal (a minor) with a gun tucked into the waistband of his pants. The officer located the apartment shown in the photograph and identified himself at the door. The officer witnessed two handguns being thrown out the window and noticed that the criminal was wearing the same clothes as in the Instagram photo. The same photo was also found on a confiscated cellphone. The defendant’s social media account “40glock” was properly authenticated and accepted as primary evidence in court.What You Can Do
The most important thing you can do to protect yourself against “social media evidence” is to be extremely careful what you post online in the first place. It’s always good practice to never post comments and pictures that are incriminating (or even just in bad taste) in any way. As stated previously, if you are arrested, don’t delete potential evidence against you. What you can do is turn your privacy modes to the highest level on each of your social media accounts. This will give an added layer of protection against anyone who may be trying to dig up dirt on you. If you’ve been arrested, contact an experienced criminal defense attorney for advice on how to handle your social media accounts.Bradley Corbett
Bradley Corbett is a criminal defense attorney in San Diego. He graduated from Brigham Young University in Provo Utah in 2004. Later he enrolled at Thomas Jefferson School of Law in San Diego where he participated in a prestigious internship program with the Los Angeles County Public Defender. Since then he has handled over 2,000 cases.