Social media includes a variety of online platforms and services that let people communicate with their friends and the greater public, including Facebook, Twitter, YouTube, Instagram, and Snapchat. While social media can be fun, most social media platforms record your posts and keep the pictures and videos you upload.
During a criminal case, you can almost guarantee the prosecutor will pull your social media postings and put them into evidence. Unfortunately, social media posts can be quite damaging.
In the worst case, they are a direct admission of guilt. For example, a picture can show that you are in possession of stolen property. Posts can also be used at trial to show that you are not credible or that you are not telling the truth. Posts may lead to the prosecution of other witnesses who can testify against you.
Key legal considerations
The Fourth Amendment to the U.S Constitution provides that that people have the right to be protected against unreasonable searches and seizures and that warrants can’t be obtained without probable cause.
Whether a search is reasonable depends, in part, on whether a defendant had a reasonable expectation of privacy when the social media post was made. One guide to determining whether privacy was expected is the personal privacy settings on the account. If the settings make everything open to the public, then there is no privacy expectation and the post can be searched by the prosecution. Even if you had some expectation of privacy, the government will likely argue that that expectation was waived or limited and, thus, that the evidence can be used against you.
The Fourth Amendment protection only applies to the accused. If a person you are communicating with makes an incriminating post, that post is available to be used in court and by the prosecution.
These are a few more legal considerations to keep in mind:
- A social media post may provide the government with the probable cause needed to obtain a warrant.
- The authenticity of the post does need to be verified.
- The judge should consider whether the post has probative value and whether it is relevant to the case against you.
The best advice if you are charged with a crime or believe you are a suspect is to stop using social media.
Pick up the phone instead and give us a call.
At Aiello, Harris, Marth, Tunnero & Schiffman, P.C., our New Jersey criminal defense attorneys fight to exclude evidence that can be used against by bringing the appropriate legal challenges. To speak with an experienced trial litigator, please call us at (908) 561-5577 or fill out our contact form to arrange an appointment.