If you have been charged with a crime or violation, the arresting officers will warn you that anything you say can and will be used against you in court. This Miranda warning applies beyond what happens at the scene or in the police station.
Anything that you say leading up to a trial or court hearing—including what you post on social media—is fair game. Social media sites such as Facebook, Instagram, and Twitter are great for connecting with friends and family. However, sharing photos with you in supposedly stolen merchandise, spending time with alleged co-conspirators, or holding an open container while driving can be used as evidence in criminal investigations.
Keep the following cautions in mind when posting to social media; they may help to mitigate potential damages to your defense:
How Can Prosecutors Use Social Media in Criminal Law Trials?
When on trial for a crime, law enforcement and the prosecution will try to dig up anything that they can to help their case. As a former Prosecutor, I know.
Social media can and may be used against you in a court of law to discover evidence, confirm or discredit your alibi, develop connections, find other suspects or witnesses, discover incriminatory statements, or show what you, the suspect, were doing prior to the crime.
Here is how the prosecution might use social media in a criminal law trial:
Social Media is NOT Considered Private
Courts have ruled that internet and social media posts are considered public information and can, therefore, be used as evidence. Even if your posts are “private” or set to “friends only” investigators can obtain access to them and use them to support their case.
If you are dealing with arrest, stay off social media, and speak to a lawyer immediately to help you with your unique case.
Social Media Posts Can Be Used to Support the State’s Case
During the investigative and discovery periods of a criminal case, investigators, police, and prosecutors will often gather supporting evidence from social media. They can even use these posts to corroborate a witness or discount a suspect’s statements. They might also find evidence of intent to commit a crime, which may lead to additional charges.
Check-ins on social media and online photo metadata could place you at the scene of the crime, or provide unequivocal evidence that can weaken your defense strategy. For example, your criminal defense lawyer may have a harder time fighting your 3 a.m. DUI arrest when the prosecution introduces a photo showing you, the suspect, in a bar at 2 a.m. on the date in question.
Social Media Can Be A Poor Character Witness
If you post on social media about your activities, prosecutors can use what you share to paint an unfavorable portrait of your character or make you seem irresponsible. Even photos or posts that others tag you in can further discredit your character in the eyes of the jury. Be mindful of posting anything about your case on any social media platform until its conclusion!
If arrested for a crime, completely deleting your social media accounts can only make you appear more guilty as this action can be viewed as an attempt to destroy evidence. Don’t touch them or take any action until you’ve spoken with a defense lawyer.
The Stored Communications Act
The Stored Communications Act (SCA) sets the conditions under which social media companies or “providers of electronic storage information,” may release content and user information to third parties.
Even if photos and other content on social media sites are discoverable, litigants seeking to use this as evidence in a case must prove its relevance to the case.
Should investigators manage to receive account holder information, they are obligated to verify whether the name on the account belongs to the actual subject in question. They also must prove that the posts are authentic, not pranks, and were posted by the subject.
Arrested? Stay Off Social Media
If you or a loved one has been arrested or accused of a crime, stay off social media and contact the attorneys at Stechschulte Nell to discuss your criminal case and defense strategies. Call our top-rated Tampa, FL criminal law firm at 813-280-1244 to speak with our expert defense attorneys. We are available 24/7 to take your call.