If you are facing criminal charges or think you were involved in potentially illegal activity, you may be tempted to post about your exploits, ask friends for advice, or discuss updates in your case online or on your social media platforms.
Don’t.
Social media sites like Facebook, Instagram, Twitter, and TikTok are pervasive. People use these apps to share their thoughts in a Facebook post, a Tweet, or a Tik Toc video. They also use them to communicate with smaller groups in chats.
Before you share your thoughts on social media, it is essential that you understand the potential legal consequences of your actions.
The use of social media began in the late 1990s. Today, billions of people around the world use various forms of social media.
One side effect of the ability to share your thoughts instantaneously is that many people tend to overshare. This can cause problems, especially when you are involved in ongoing litigation. Your social media posts can be used as evidence in court. And even if you take the post down, you could still be accused of tampering with evidence.
Some people mistakenly feel protected on sites like Snapchat, where your posts “disappear” after a certain amount of time. Even so, someone could take a screenshot of the post and use it as evidence. Or a particularly aggressive prosecutor could uncover the records by obtaining your login credentials, subpoenaing records from your account, or requesting the information directly from the social media site.
Today, judges have no hesitation in allowing information shared on social media to be used as evidence in court. In some cases, this can be beneficial. But in others, it can have a severely negative effect.
Contrary to popular belief, there is no prohibition on using information shared on social media as evidence. If you share incriminating information—whether in a public post or through a supposedly “private” chat—it can be admitted into evidence in a court of law.
The lesson to take away is that anything you share online, whether publicly, in a private message, or via email, can be used as evidence.
As a general rule, you should avoid discussing anything related to a potential criminal case or ongoing litigation, especially online. Posting online could have serious consequences for the outcome of your case.
If you feel the need to discuss your case with someone other than your lawyer, do so in person, and only with people you trust.
Tell your friends and family not to discuss your case with anyone, and encourage them not to post anything about your case online.
And check the privacy settings on your social media accounts to be sure they are set to the highest possible privacy levels.
If you were involved in potentially illegal activity, believe you are under investigation for a crime, or have already been charged, be wary of accepting any new friend requests. People may create fake profiles to try to infiltrate your social circle, then use the information they obtain online in the case against you.
If you have already posted about your case on social media, do not delete the posts. You may be legally required to preserve evidence. By deleting the information, whether it is online, on a mobile device, or on a computer, you could face additional charges for tampering with evidence.
Likewise, do not expect that deleting evidence or using encryption technology will prevent people from accessing the content. Law enforcement forensic personnel can recover anything that was on your computer, social media accounts, or mobile device.
And even if your devices and accounts are protected by a password, it is not uncommon for courts to grant requests by law enforcement authorities to have you turn over all of your passwords.
In short, almost nothing you do online, on a mobile device, or on a computer is private.
To protect yourself from having digital information negatively impact your criminal case, here are some guidelines to help keep you safe:
The use of technology is ubiquitous and affects so many aspects of our society. The law is no exception. While new technology presents incredible benefits, it can also pose new risks, especially for the unwary.
At Elmen Legal, I use technology and social media to better communicate with my clients, fellow lawyers, and the courts. But I also advise my clients to be wary of how they use social media sites and what they post online.
If you have questions about social media evidence law or are concerned about the use of Facebook posts as evidence in court or how your use of social media could be used to charge you with a crime, contact Elmen Legal today to schedule a free and confidential consultation to discuss your situation and how I can help.
Call me at (734) 707-8915, email robert@elmenlegal.com, or complete the online form. I proudly represent people in and around Ann Arbor and throughout Michigan and look forward to discussing how I can help you.
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