Having a social media presence today is akin to having a cell phone - pretty much everyone has one.
Many people still view social media as a kind of online diary. You share thoughts, opinions, photos of yourself and your family, and post about things you enjoy. While it may seem like a private diary, it's more of an open book, or sometimes, a massive billboard.
Whether you primarily use social media for connecting with friends or engaging in lengthy political debates, it's essential to understand that what you post online is never truly confidential. There are a number of ways to lock down your account - which we recommend for many reasons outside of the courtroom - such as limiting your friend list or making your account visible only to whom you choose.
We hear, “But, my account IS private” or “I only send direct messages, and I never comment publicly.”
But just like text messages, Facebook messages, Instagram DMs, comments, photos, and other pieces of information can be used as evidence for or against you in your case.
Doesn't this count as illegally obtained evidence?
Contrary to popular belief, this isn't true. Illegally obtained evidence usually refers only to evidence obtained by law enforcement, not individuals. And even in the case of illegally obtained evidence, it applies to the following kinds of scenarios:
- Coerced confessions/admissions
- Search conducted without a warrant
- Illegal detainment
- Lack of probable cause
- Improper seizure
That means the prosecution in a criminal case and a private party in a civil case can present your private messages, comments, or photos as evidence in court, and it will likely be admissible.
For example, let's say you're being accused of committing a crime at a gas station. Your alibi is that you were at home at 11 PM on the Friday night in question. The DA performs a quick Google search of your name, which leads to your public Facebook page, which shows you out and about with friends at 11:05. Okay, so maybe you weren't at the gas station where the crime occurred, but you were out, and now the DA has evidence that you lied about your alibi.
If this seems improbable, it's not. With the massive uptick of Facebook and other social media platforms, it has become a prime tool for investigators, law enforcement, and attorneys to use not only to find suspects, but potentially convict them as well.
Can't I just delete everything?
Yes, and no. It's important to understand first that 1) deleted information is often recoverable, and 2) sometimes deleting information can be more incriminating.
It can become problematic (and maybe even illegal) to delete information once court proceedings have begun. Depending on the scenario - and there are many factors - you could potentially be accused of tampering with evidence.
While we don't recommend running to the delete button if you're currently on trial, we do think it's wise for everyone, charged or not, to clean up their social media accounts. As a general rule, it's a good idea not to over-personalize your accounts because doing so can lead to hacking, harassment, and identity theft.
Is there any good news?
Yes! While recklessly posting can certainly hurt your case, social media has the opportunity to help your case as well. If you're being accused of a crime and the content of your social media or other messaging apps can prove your innocence, you may be in luck. Or say you're being wrongfully accused of stalking, and you're trying to fight a VPO - messages and photos from the opposing party can potentially aid you in the success of your case. Perhaps you can prove your own lack of response or your accuser's harassment. These types of scenarios happen all the time.
In other words, keep messages. Messages, emails, and social media posts can all be presented in favor of your position. And this doesn't apply only to criminal cases - we see social media used in matters of custody, divorce, and civil suits.
How can I protect myself?
An easy rule of thumb: if you wouldn't say it in public to a group of strangers, don't say it online. Be cautious with what you share and with whom you share it. Anything you share can be shared again, screen captured, and saved. So understand that sharing it even once - even if you delete it - never means it's gone for good.
Save messages, emails, and other correspondence. You never know when you'll need them to protect yourself. It's tempting to angrily delete an entire convo/person from your phone, but realize that it's only gone on your end. They still have it. You might as well have it, too, to use for your benefit.
Lock down your social. Make the accounts private and weed out your friend list to include people you actually know. It will serve you much better in the long run.
If you've been accused of a crime or need assistance in a family law case, let our award-winning attorneys at Worden & Carbitcher help you. Call our office today at 405-360-8036 to schedule your consultation.