If you’ve ever asked “Can social media be used against me in court?” the answer is definitely yes. Social media can—and often will be—used against you in a criminal proceeding.
Most people use social media technology in their daily lives. As more people use social media sites, it’s logical to assume that technology also influences the practice of law. More court cases turn to social media.
In comparison to other types of evidence, the ABA notes it’s often fleeting. Defense lawyers are apt to question social media authenticity when prosecutors seek to enter it into evidence. (Federal Rules 401-402, 403, 901 and 902) They may also seek to authenticate and preserve social media evidence when it shows the defendant is innocent of charges he or she faces in court.
The Stored Communications Act
Experts in social media and technology say it’s usually unnecessary for prosecutors to subpoena the social media website to obtain material because, in so doing, the site may violate the Stored Communications Act. Sites such as Facebook or Twitter are unlikely to turn over requested content if subpoenaed. However, they may agree to work with authorities in a criminal case. For example, the site may provide proof of ownership in order to assist in authentication of the evidence.
It’s common for individuals to claim an online account isn’t theirs. Although proving a social media account’s ownership is often complex, the site may provide proof of ownership in order to assist in authentication of the evidence.
Legal Access to Online Social Media
Trail v. Lesko shows the direction of case law. Referencing the judge’s decision, the requestor must present sufficient likelihood that a social media account includes “relevant information” that isn’t otherwise accessible in order to gain legal access. To gain discovery, the requestor must argue that the user’s account shows information that’s contradictory to the user’s claims. He or she must argue that the account contains relevant information.
Social media account authentication
Authentication of the account is frequently the first step towards getting social media materials admitted into evidence.
However, getting social media admitted into evidence is only the first step. The prosecutor must show that the text entered into the account was written by the individual owner. In the Texas standard, Tienda v. State, the judge is considered the evidence gatekeeper. The jury then makes final decisions regarding the evidence’s reliability.
Importantly, social media evidence isn’t “self-authenticating.” The site’s certificate of ownership isn’t iron-clad proof that the account is question is owned by the user of record. Attorneys may provide additional “extrinsic” or external evidence to support it. Therefore, the standard is the preponderance of evidence.
The attorney will use questions in depositions or interrogatories to support authentication. He or she may try to get the defendant to admit using the social media account and the identified device to post content. He or she will then ask if the defendant posted the social media content in question.
Legal risks regarding online content
Attorneys are officers of the court. They must observe the law when building their case with social media content. If the attorney inappropriately assesses the content, he or she may violate the Electronic Communications Privacy Act (a felony) as well as state laws.
Attorneys must not assume another person’s identity online, because the consequences may be severe.
Similarly, the owner of the social media account shouldn’t lie about his or her social media accounts or delete content. Doing so may result in spoliation of evidence, or “intentional, negligent, or reckless” withholding, destroying, hiding, fabricating, or altering of evidence that’s relevant to legal proceedings.
Preservation of evidence
It’s critical to preserve social media content evidence. According to the American Bar Association (ABA):
- Keeping a hard copy or taking screen shots are often the easiest way to preserve social media content, but there are limitations. For instance, the code or programming language might make it difficult to capture all of the content in a print-out. If making hard copies, include footers and headers in the print. Time stamp and record the site address.
- Use the Microsoft “snipping” or the Apple “grab” tools to capture content. Adobe Acrobat Pro may be used to create a searchable .PDF file from the site URL. (Note: these tools don’t allow the capture of active content or source code.)
- Open-source programs, such as HTTrack or GNU Wget, are useful tools for those with a tech background.
- Snagit is useful when capturing video content is important. It also enables annotation of the captured information.
- X1 Social Discovery helps users to capture metadata as well as single pages or entire websites.
- Page Vault preserves social media content as it’s displayed. It is useful when capturing high volume details, e.g. a corporate website.
Social Media and Jury Selection
Attorneys have long used online information available to the public about prospective jurors. Social media may be considered a back channel to prospective jurors’ thoughts and discussions. For instance, an individual who feels bored or trapped may be inclined to tweet a message to friends.
For this reason, it’s important for attorneys to take steps to identify jurors’ social media accounts. Doing so can help an attorney to understand if the individual’s presentation in the courtroom is reflected by social media posts. Social media may also enable attorneys to gather more legal information about jurors than in the past.
It may be relevant for the attorney to incorporate data from social media content into voir dire, the preliminary examination of the juror by counsel or judge. Again, attorneys mustn’t commit ethical violations, e.g. deploying a third party to retrieve the user’s restricted pages.
Juror misconduct and social media
According to Reuters, the number of jurors posting or tweeting on social media outlets during trial proceedings is quite high. Such activities have resulted in overturned verdicts or new trials.
It’s important for the defense attorney to remain alert to jurors’ activities. If the juror is focused on posting information online, he or she isn’t giving full attention to the case. It may be necessary to ask the judge to require the juror to release social media records in that case.
Misconduct of jurors may influence trial outcome. In a Supreme Court case in Arkansas, the court reversed a death sentence conviction because of a juror’s tweets during court proceedings and deliberations.
Social media activity creates significant opportunities for attorneys to glean potential jurors’ beliefs, offer grounds to argue a jury’s verdict on appeal, or influence a post-conviction proceeding in a criminal case. For this reason, it’s relevant for the client to ask his or her defense lawyer about his or her understanding and use of social media.
Think Carefully before Posting Anything Online
Social media platforms, such as Facebook, Twitter, SnapChat, YouTube, and others are part of most peoples’ daily lives.
However, it’s critical to avoid posting anything if you’re involved (or about to become involved) in a court case. Your online content and posts probably will be carefully evaluated and, if possible, used against you.
Privacy doesn’t exist online. Your “private” online pages aren’t private. Even if you deleted information from social media or web pages before you became a defendant in a criminal case, it’s possible for prosecutors to retrieve this information.
Similarly, it’s possible to obtain the full scope of your social network activities on sites like Facebook. Your timeline posts, login IP address and geophysical location, messages, ads, photos clicked, etc., are available.
If you’re facing a trial, don’t use social media. At the same time, don’t attempt to clean it up after you’re facing charges. As soon as you become involved in a court case, it’s your responsibility to preserve evidence. Even if the evidence supports the other side’s case, you must not change, destroy, or delete social media. Doing so may harm your defense.
While few people anticipate legal trouble, think twice before you post anything online. If you use social media, consider what your accounts say about you to others. What you post or upload today could affect the rest of your life.
Contact an Experienced Criminal Defense Lawyer in Houston TX
Now you know: social media can be used against you in court. More criminal cases involve social media content and/or questions about technology today.
If you or someone you love has been accused of a crime, you need an experienced criminal defense attorney at your side as soon as possible. You need a knowledgeable attorney to protect your rights.
Contact The Law Office of Matthew D. Sharp in Houston at 713-868-6100 to schedule an initial case evaluation now.