Social Media And Your Criminal Case

Social media is unavoidable. It is increasingly important for staying in touch with friends and loved ones, especially during a pandemic where many people had to remain isolated for long periods of time. While social media is overwhelmingly helpful in some ways, it can also be detrimental in others. In both criminal and civil cases, social media information is often admissible, which can often hurt a defendant’s case. At the Law Office of Faraji A. Rosenthall, we stay up-to-date on the constantly-changing and developing laws around social media use and work to ensure our clients’ cases are not damaged by the use of social media data. Contact our experienced criminal defense attorneys at 703-934-0101 to learn more about how social media impacts a criminal case.

When Is Social Media Discoverable?

During a criminal case, there is a period called “discovery” where each party has the opportunity to discover relevant evidence to support their case or challenge the other side’s. The prosecution may use police agencies to investigate and discover relevant information, such as by scouring the defendant’s social media profile. In some cases, they may find relevant evidence on a defendant’s public profile, and in other cases, they may subpoena the social media site for access to private data.

Does a Defendant Have a Right to Privacy?

Generally, the Fourth Amendment protects you from unreasonable searches and seizures. While the laws surrounding social media are constantly evolving, the general consensus is that you do not have a right to privacy in your social media posts, even if you switched the setting to private before posting. Shockingly, in United States v. Meregildo, a federal court in New York held that it was not a violation of a defendant’s Fourth Amendment rights for a cooperating witness to create a fake Facebook account at the direction of the government and “friend” a criminal defendant to have access to his private Facebook data without a warrant.

How Can Social Media Impact Your Criminal Case?

Your social media content can make a significant impact on your criminal case, which is why it is important to keep your profile clear of potentially incriminating information.

Evidence of the Crime

The worst-case scenario for a criminal defendant is that they posted some information relating to the alleged crime on their social media. While it may seem obvious not to do this, it unfortunately happens more often than expected. Remember that it is not only “public” social media posts that are discoverable. Even so-called “private” messages can be discovered. A message exchange in a direct message feature, such as Facebook Messenger or Twitter DM’s can be discovered by the prosecution, so if you sent a message to anyone related to the alleged crime, it can be used against you.

Poor Reflection of Character

Even if your social media profile has no evidence directly linking you to the alleged crime, it can also be used for other purposes, such as to impeach you or prove that you are unreliable. Though the prosecution is not allowed to use character evidence to try to make the judge or jury biased against you, the unfortunate reality is that social media evidence can often have that effect. Images of alcohol over-consumption or illegal drug use can carry certain connotations that might lead the judge and jury to think the worst.

Inconsistent Statements

Social media documents so much of our lives that it can be easy to forget that there is often digital evidence of where we were, who we were with, or what we were doing at a given time. If you are someone who posts regularly on social media and uses location data, understand that there is probably a significant amount of data out there that could catch you in a lie if you fail to keep your story straight. For example, if you are pulled over for a suspected DUI and tell the police that you were coming home from work, but Facebook data show that you were at a party that night, it may damage your case.

Can Social Media Be Used to Defend Me?

On the other hand, social media may also be helpful to your defense. It can help establish an alibi by using location and timestamp data to show where you were when the alleged crime was being committed. However, social media evidence is more often than not harmful for criminal defendants, so always remain vigilant of what you post on any social media platform.

Do Not Delete Posts

Although the use of social media posts can be harmful to your criminal case, it is typically not a good idea to try to delete posts that you think the police might try to discover. First, even after a post is deleted, it is still archived on the internet and can be pulled by the social media company by subpoena. The metadata can also show when it was deleted, which can make it seem as though you were trying to hide it from discovery. In these cases, a defendant could also be charged with obstructing justice by deleting potential evidence in their criminal case. If you are concerned about what exists on social media about your or your criminal charges, consider visiting with an experienced criminal defense attorney at the Law Office of Faraji A. Rosenthall to learn more about your legal rights.

Be Candid with Your Lawyer

When you are discussing your case with your lawyer, they may ask you to tell them about your social media accounts. Do not try to hide anything from your lawyer. They are looking out for your best interests, but they will not have the ability to help you if they are not aware of all of the potentially harmful evidence on the internet. Be prepared to share your social media accounts with your attorney so they can help develop a strategy and not be surprised by any photos or content that the police may discover in their investigation.

Call Our Experienced Criminal Defense Lawyers

If you are facing criminal charges, consider speaking with the experienced Virginia criminal defense lawyers at the Law Office of Faraji A. Rosenthall. We have experience representing clients in a wide array of types of criminal cases. Attorney Rosenthall has experience on both sides of the criminal process, both as a criminal defense attorney, and formerly, as a prosecutor. As a result, we understand the tactics and strategies that prosecutors may use to try to hold social media evidence against you in your criminal case. Call us today at 703-934-0101 for a free consultation.