You’re likely on social media. After all, there are 4.8 billion social media users worldwide, representing 92.7% of all internet users. While social media posts can help you connect with people across the world, they can also create a digital footprint and content that can persist in the metaverse long after you have posted or even deleted them.
Most people expect that their social media information will be kept private, or at least within the circles that they have tried to confine it to. They may be surprised to learn that law enforcement is actively trying to use it against them. As social media becomes an ever-increasing form of expression, it is being used in more and more criminal cases to convict defendants.
At the Law Office of Mike Howard, we understand how law enforcement can use social media, how prosecutors authenticate social media evidence, and how to raise appropriate legal challenges to this evidence. Contact us today to learn more about how we can protect your legal rights.
Can Social Media Posts Be Evidence in a Criminal Case?
The short answer is YES! Generally, it is quite common for law enforcement to use social media posts and related information in a criminal investigation and then ultimately in a prosecution. Anything you publish online, whether it is public or “private,” can potentially be used against you in a court of law. Law enforcement can find your social media posts online, get information from your friends’/followers’ pages, and issue subpoenas to demand evidence stored online.
For the prosecution to present social media evidence against you, they must generally establish two things: the information is authentic and relevant.
Authentic means that it has been independently verified that the content came from the account the prosecutor claims it came from, that the suspect created or shared it, and that the content has not been altered.
The Texas Rules of Evidence define relevant evidence as evidence that “has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.
As long as the prosecution can meet these two bars, they may be able to present the evidence against you.
Methods for Police to Access and Analyze Social Media
Most police departments across the nation, including those in Texas, use social media as an investigative tool to help find evidence to convict individuals suspected of committing a crime. Social media can be a treasure trove for law enforcement officers and prosecutors, where they can find admissions, behaviors, and connections that might not be as obvious in real life.
Police can use various methods to access this crucial information, such as:
Direct Access
Nothing is stopping a police officer from searching your name and content online for anything that is publicly available. They can do this without sending friend or follow requests. They can take screenshots of incriminating evidence. Extracting public posts and communications on an internet forum or social media app does not require consent or a court order.
Subpoena
The prosecution may issue subpoenas to get information directly from the social media platform(s) in question. This is probably the most common way police and prosecutors gain access to and use social media evidence against people in court.
Forensic Examination
In some cases, a person’s computer, tablet, or phone may be searched for evidence that could be used against them. Sometimes called a “phone dump,” this is where the police use forensic software to download a copy of the device. This allows them to get everything that is on the device, including, in many cases, things that the user has deleted. That’s right, they can often recover things you have deleted from your computer, phone, tablet, etc. A forensic phone download usually requires a warrant based on probable cause.
How Law Enforcement Uses Social Media Posts Against Criminal Defendants
Law enforcement could use social media posts and information in many ways that could harm the defendant, such as:
Evidence of the Crime Itself
In some cases, social media may include photos, images, or comments that incriminate the defendant. For example, a person may be displaying a lot of cash after committing a robbery or talking about what they plan to buy. If the case involves domestic violence or assault, social media could contain threatening messages. Drugs or illegal firearms could be in the person’sphotos or videos.
Historical Evidence
Even if the social media posts did not show evidence of the crime itself, they may still be relevant in demonstrating your relationship with the victim, other people suspected of committing the crime, or even your opinions. For example, if you are charged with domestic violence, the prosecution may seek to admit negative posts you made about your former partner. If you are charged with a hate crime, evidence of you making negative statements about the class the alleged victim was part of could come up in your case.
As a Contradiction
Police may use social media as a way of getting the suspect to admit that they lied about something in a previous interview.
Make Connections
Social media platforms can help show connections between people who may not interact in public. These connections can help law enforcement agencies track down potential accomplices.
Identify Suspects
Facial recognition software has revolutionized law enforcement’s ability to identify suspects. Once they have a suspect, they simply go through that suspect’s social media posts and often are able to identify other people suspected of being involved in the alleged crime. Some police departments share pictures or videos on their social media pages of someone they identify as a suspect or person of interest and ask the public for help identifying them. They may also ask for tips to help them solve their cases. Since everyone just about has a phone now, it is easy for people to take a photo of a person or an event and upload it to social media sites.
Location Data
It’s not only the content itself that could potentially incriminate a suspect. Instead, the metadata could contain important details, such as information about the suspect’s location immediately before, during, and after an alleged crime was committed. This evidence could contradict your alibi defense. Time stamps help authenticate this data.
Steps to Take Regarding Social Media If You Are Accused of a Crime
It’s not only the social media posts that existed at the time of the crime that could hurt you. Police may be actively monitoring you, your friends, and your family while the case is ongoing. Take these steps to protect your privacy and legal rights during this time:
Don’t Post
During a criminal investigation, it’s best not to post anything on social media. Even if you think it’s not relevant to your case, imagine how you will feel if the prosecution shows a picture of you smiling and implies that you were unbothered by the crime.
Be Careful About What You Post
If you do decide to post despite the recommendation above, some basic steps to follow include:
- Don’t discuss case details.
- Don’t admit to the crime.
- Don’t interact with the alleged victim or potential witnesses.
- Don’t post anything that would tend to make you look like a “bad guy” in general.
- Don’t post any illegal activity.
Increase Your Privacy Settings
Set your social media platforms to the highest privacy settings. While there is no guarantee that law enforcement won’t use other channels to get information that is stored on social media platform servers, adjusting your settings can at least prevent police officers from accessing available information without taking those additional steps.
Don’t Delete Anything
If you’re afraid that law enforcement might use evidence stored on social media platforms against you, you might be tempted to erase photos, videos, messages, and comments. However, this could be viewed as evidence tampering and additional charges. It could also raise jurors’ doubts about your account of events.
Ask Friends and Family Not to Post
Request that your friends and family refrain from talking about you, tagging you, or posting anything about you or your case online until your case concludes. Prosecutors could potentially use these posts during the examination of your witnesses.
Legal Challenges to Social Media in Criminal Cases
Even if the prosecution tries to use social media posts or information as evidence against you, an experienced criminal defense lawyer may be able to make legal challenges to prevent its admissibility or reduce its weight in your case, such as:
- Arguing that the police lacked probable cause to get the evidence in the first place
- Arguing that you were hacked
- Arguing that screenshots have been edited
- Arguing that metadata was stripped
- Highlighting errors in how the evidence was handled or authenticated
- Arguing that proper standards were not followed
- Challenging the message as not having the complete picture or providing full context
- Demonstrating that posts are inaccurate or biased
- Arguing that the post was cropped in a misleading way
- Arguing that the social media platform’s algorithms contributed to visibility patterns that distort behavior
- Showing that the social media post or information supports your version of events
Contact the Law Office of Mike Howard for Immediate Legal Assistance
If you are at the stage where you are concerned about how your social media might affect your criminal case, you need legal representation. An experienced criminal defense attorney from the Law Office of Mike Howard can help protect your rights, advise you on social media usage during your trial, and develop a legal strategy based on the particular details of your case. Contact us today for a 30-minute case evaluation.
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