The arresting officers will caution you that everything you say can and will be used against you in court if you have been charged with a crime or violation. Beyond what occurs at the scene or inside the police station, this Miranda warning is still applicable.
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, Twitter, and Instagram are excellent for keeping in touch with friends and family. But, uploading pictures of you with allegedly stolen goods, hanging out with alleged accomplices, or driving with an open container in your hand can all be used as proof 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 Do 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 before 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. Investigators can view your posts, even if they are “private” or set to “friends only,” and they can use them to strengthen their case.
If you are dealing with an 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. These posts may even be used to support the testimony of a witness or refute the claims of a suspect. Also, they might discover proof of criminal intent, which could result in further charges.
Social media check-ins and online photo metadata may identify you as the perpetrator or offer clear-cut proof that undermines your defense. For instance, when the prosecution provides a photo showing you, the defendant, in a bar at 2 a.m. on the relevant date, your criminal defense attorney may find it more difficult to contest your DUI arrest at 3 a.m.
Social Media: Evidence of Poor Character?
Prosecutors may use the information you publish to portray a negative picture of your character or make you appear irresponsible if you post about your activities on social media. Even pictures or posts where you are tagged by others can damage your reputation in the eyes of the jury. Be careful not to share anything about your case on social media until it has been resolved!
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.
