A Rochester Criminal Attorney Explains Social Media as Evidence

We all know social media is a big part of our lives. The average American spends over two hours a day on platforms like Facebook and Instagram. Social media can be a great way to stay in touch with people, but it can also be dangerously addictive. Social media use in criminal court is also a double-edged sword. Either a prosecutor or a Rochester criminal attorney could effectively use posts, likes, photographs, and anything else on social media.

However, the purpose of the social media evidence is different depending on who is using it. Prosecutors must use evidence to prove doubt beyond any reasonable doubt. Defense attorneys must only create a reasonable doubt in the mind of a single juror.

Applicable Laws for Social Media as Evidence

Various laws protect internet privacy and regulate social media content. However, most of these laws protect personal information, like date of birth, Social Security number, financial information, and IP addresses. Other laws address objectionable or illegal content. But for the most part, especially in terms of social media, pretty much anything goes.

Online reviews are an excellent example of the internet free-for-all. Anyone can post a positive or negative restaurant review. Frequently, highly positive reviews are paid reviews, and extremely negative reviewers didn’t eat at the restaurant.

As a result, authenticating social media posts for use in criminal court is far from straightforward. More on that below.

How Prosecutors Use Social Media Evidence

The state could use social media posts for almost any purpose. Commonly, prosecutors use it to establish intent.

Domestic assault is a good example. Defendants often argue that they didn’t intentionally injure an alleged victim. Sometimes, people really do trip and fall down the stairs. Savvy prosecutors often use prior social media posts to undermine that defense. If Eddie posted negative remarks about his wife before “she accidentally fell,” that defense isn’t nearly as compelling, especially in jurors’ eyes.

New York’s hate crime enhancement is another example. Prosecutors often use this law to charge offenses that are typically misdemeanors, such as ordinary assault, as felonies. Prior posts and likes that indicate hatred toward a protected class could be relevant in this area. Protected classes in New York include gender, national origin, ethnicity, disability, and sexual orientation.

Prosecutors cannot use social media posts to show prior bad acts, like the classic guns, money, and drug selfies. Furthermore, the information they use is subject to authentication requirements. We’ll discuss this point further in a minute.

How a Rochester Criminal Attorney Uses Social Media Evidence

Prosecutors cannot use incriminating photos or posts as evidence of guilt, but a Rochester defense attorney can use such posts to establish an alibi. Social media photos are always time and date-stamped. An obscure detail, like part of a sign in the background, frequently makes a big difference. Once again, a defendant doesn’t have to “prove” anything. A defendant only must create reasonable doubt. So, the social media picture or other post doesn’t need to prove the defendant’s innocence. The standard of evidence is much lower.

Defense attorneys can also use social media pictures, likes, and posts to undermine witness credibility. As mentioned previously, these posts cannot serve as evidence that a witness is a bad person. Technically, a Rochester defense attorney uses this evidence to prove what the witness said, not to prove what the witness said was true.

Now, for the authentication question. Even though platforms like Twitter and Facebook have been around for a decade or more, New York’s rules of evidence haven’t been updated to include social media authentication rules. So, courts usually make their own rules.

Some judges liberally allow prosecution or defense to use social media posts. However, other Monroe County judges are very suspicious of electronic evidence in general and social media evidence in particular.

Usually, social media posts are presumptively authentic. In other words, the judge assumes that the account owner posted the content.

The other side may refute the presumption with evidence the defendant shared their password or evidence the account was hacked.

The type of use could be important. Prosecutors who try to admit social media evidence as proof of intent often have a more challenging time authenticating evidence than defense attorneys using it to create reasonable doubt.

Consult An Experienced Rochester Defense Attorney

Social media posts can be evidence in court. For a free consultation with an experienced Rochester defense attorney, contact the Law Office of Frank Ciardi. Convenient payment plans are available.

The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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