Facebook, Twitter, and other social media platforms are a good way to keep in touch with friends and family. But there is a potential dark side as well. Not many people realize that social media and criminal defense affect each other. A very long list of individuals hit like or send without thinking things through, and they paid the price later.

Did you know that social media also has criminal defense consequences? Photographs and posts give investigators a wealth of information. And, thanks to the Stored Communications Act, law enforcement officers may not need a warrant or probable cause to access such information. The SCA requires some social media companies to release communications and even “user information” to law enforcement groups and other third parties.

An experienced Rochester criminal defense lawyer must be prepared to deal with social media in court. Posts and photographs could make or break a case.

Some Social Media and Criminal Defense Issues

Social media is especially important in certain kinds of cases. Hate crime assaults are a good example. Frequently, prosecutors look through social media accounts looking for recent posts or likes which indicate hostility against a certain group of people. Specific types of social media in these cases include:

  • Pictures: Tagged photos of a defendant near a crime scene may be used as evidence in court. The same thing applies to pictures of the defendant in a bar immediately prior to a DWI arrest.
  • Location: CLSI, or cell-site location information, is one of the few exceptions to the social media and criminal defense warrantless search rule. Cell phone towers tag phones at certain locations. In 2018’s Carpenter v. United States, investigators tagged the defendant at almost 13,000 locations over a three-month period. A sharply divided Supreme Court ruled that officers must obtain search warrants before they may access such data.
  • Posts: Both liked posts and original posts may provide evidence of motive and intent in criminal cases. Posts may also provide evidence of premeditation in violent criminal cases.

If there are incriminating items on your social media account, do not delete them. Investigators can still find them. Furthermore, deleting posts or pictures makes people look guilty and could also be considered tampering with evidence.

Authenticating Social Media in Court

As mentioned above, embarrassing social media posts have probably affected almost everyone at one time or another. But there is a big difference between the court of public opinion and a Monroe County criminal court. If the post comes up at work, there is a presumption that it is authentic. But in criminal court, there is a presumption of innocence. In other words, there is a presumption that the post is inauthentic.

To overcome this presumption, prosecutors must establish that the posts actually appeared on social media at a certain time. A judge may require something like a timestamped screenshot. Moreover, the state must prove that the defendant posted the information. That showing is not easy to make if there is evidence the account had been hacked or if the defendant shared the password with another person.

Contact a Tenacious Lawyer

Social media posts may be used against you in court. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.

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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