Don’t Incriminate Yourself
If you are facing criminal charges or an investigation, your social media history can be used to incriminate you. Your posts, comments, images, and video can all be used as evidence against you in court — whether from Instagram, TikTok, Facebook, Twitter, etc. In fact, you can count on investigators, police, prosecutors, and opposing counsel to scour your social media history in search of incriminating evidence.
Is social media admissible in court?
Yes, anything you post on social media is typically admissible at trial and can be used as evidence. Data collected from your social media accounts can be used to misrepresent or mischaracterize you to paint you in a negative light and can also be used to convince the jury that you are capable of committing the crime(s) you’re accused of.
How Social Media Posts Can Damage Your Case
It is the duty of your defense attorney to protect you in court. But, protecting you becomes much more challenging if you have certain kinds of information on your social media accounts. The types of posts that can impact your defense include:
- Posts, comments, and messages that show you have the capacity to commit violent acts.
- Posts or messages that show you drinking an excess of alcohol or doing drugs.
- Posts containing negative content about someone else involved in the case, including your wife, girlfriend, ex, etc.
- Images, videos, or other content that shows you engaging in illegal narcotics.
- Texts or direct messages you have exchanged with known criminals.
- Threats to another person via text, instant message, or direct message.
“My account is on private, am I safe?”
Although the name alone would lead you to believe a private social media account is in fact, private, and therefore immune to being scoured for evidence, that’s not always the case. Any electronic data you have posted can be found and used against you in court. If you post on social media about your case or discuss details about your charges via direct message, any of the words you posted could be used to damage your defense. This is why it’s so important to stay away from all social media if you are facing criminal charges — and especially, never discuss anything about your case by phone, text, email, or social media.
The only person you should speak with about your case is your criminal defense lawyer. These conversations are the only ones that are protected by law — even conversations with your spouse, mother, or best friend can be used against you in court! But, conversations with your attorney are under attorney-client privilege and, therefore will not be used against you in court in any way.
“I deleted my posts. Am I safe?”
During the course of the investigation, discovery process, or trial, you may start to second guess things you have posted online, so you choose to delete them. Unfortunately, once something is posted online, it can always be recovered — even if it was deleted. What’s more, the proof that you deleted this information may even look like you were trying to destroy evidence and make you appear guilty.
Your Defense Case and Social Media
When you meet with your criminal defense attorney, they will ask you about your social media accounts and whether or not you have posted anything that could harm your case. It’s imperative that you are honest with them, so your defense team is prepared to counter any information opposing counsel finds on social media to try and incriminate you. The last thing you want is your attorney to be surprised by something the prosecution presents with no viable options to defend you on a whim.
Many defense attorneys will have you deactivate all of your social media accounts for the remainder of the investigation or court proceedings.
What kind of cases are impacted by social media?
There is no limit to the type of cases that social media can impact. Any criminal case could be impacted by information found on social media, including drug crimes, violent crimes, domestic violence cases, and even criminal drunk driving cases. For example, if you are charged with DUI and the night of your arrest you were tagged in 15 photos with alcohol, the prosecution is going to jump at the chance to prove their case.
Don’t Let the Police Access your Smartphone or Device
Can the Police Access My Phone or Computer?
Knowing Your Rights: What to Do During a Police Encounter
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Seppi Esfandi is an Expert Criminal Defense Attorney who has over 20 years of practice defending a variety of criminal cases.