We document our lives on social media today. While most people still remember hearing about the birth of a child or a high school graduation, people get most of that information from Snapchat, TikTok, Facebook, or Instagram. Social media has changed things a lot and, when it comes to criminal defense, that is not always a good thing. Today, we will explore how that social media post might affect your criminal defense.
Why Social Media Is Different
Social media is very different from the way that people used to communicate. There are three major differences that give rise to why this medium is so impactful when it comes to criminal defense. Social media is, by definition, public, it’s persistent, and there is a degree of anonymity not experienced when speaking face-to-face.
When we communicate ideas traditionally, the conversation is between the people participating in that conversation. For better or worse, generally, interactions with others on social media are public. This cuts both ways. First, people are party to your conversation that you, perhaps, don’t want to be involved. If you are telling your friend who commented on your new shoes how much you did (or didn’t) pay for a new pair of shoes, that is out there for the world to see. On the flip side, people are aware that their social media presence may generate attention. The things that they share may be exaggerations or downright lies designed to maintain a curated persona for online fans. The victim of domestic assault may post comments stating that their black eye is simply a racket ball accident. In any case, the way people act online is directed by the fact that others can see it.
Social media is also persistent. The evidence that you expressed a particular idea in a conversation when the words are spoken is gone once said. Retained only by people not likely to come forward to volunteer your secrets, spoken words are often only memories once said. Social media, on the other hand, is wholly unique. The social media post where you discussed the shoes, from above, even if deleted, could remain forever in cyberspace. There are tons of things that save webpages from servers that cache data to make it easier to load to the social media companies themselves. All of this data is discoverable, meaning a lawyer can subpoena the company holding the data and get it. Is your Facebook post bad for your case? If the prosecutor knows it’s there, then you’d better believe that they will seek to obtain it from the company.
Finally, people online have a perverse sense of anonymity. You need to look no further than the comments to any tweet, post, or comment from a political official to see some of the most hate-filled speech existing. One-on-one, people would never say the sort of things that they feel comfortable sharing online. The false sense of privacy and security that comes from typing your ideas into a keyboard rather than articulating them with your voice cannot be trusted because, once again, the information out in cyberspace is persistent and public.
When it comes to your criminal case, there are some awful things that can happen when you have a social media account. This ranges from the obvious to the hidden.
Perhaps most obvious, the things you post on social media are out there for good. Should the law you are accused of violating actually involve using social media, and many do, it is very possible that the authorities already have means of tracking what goes into your profile. Additionally, every defense attorney has had a case where the client confesses or says something extremely incriminating online. Photos you post can also lead to criminal charges. If you have a prior felony conviction and law enforcement decides to check out your Facebook where you just posted a photo of shooting guns at the range, you are very likely to get arrested for a weapons offense.
The scarier thing is that even seemingly private information can be discovered. The messages you send, even though they are not part of your public profile, can be discovered by the police. After the terrorist attacks on September 11th, it became far easier for the police to gain access to information that they need. Many times, you may not even know. Police can apply for an administrative subpoena to collect evidence as part of an investigation. If they don’t find anything, you will probably never know they were there. If they find things, it can still be years before you ever know that they were searching your communications. Large Federal drug cases, for example, can see tons of law enforcement officers from various agencies spending months gathering information about the targets of their probes. Frequently, the only time people know the extent to which the police have gained access to your online presses is when you review discovery with your lawyer.
As though that was not bad enough, social media has done a wonderful job of infiltrating every aspect of our lives. Being careful about what you post, even when it’s private, may not be enough. Facebook, Google, Yelp, and more collect location data from your phone. Frequently, even when you are not using the app, information about where you were persists on the device and in cyberspace. Apple has cracked down on apps tracking you, but only through the methods that were currently employed. Data about how people act is extremely valuable, so, no matter what, companies will continue to find ways to collect it. What this means for your criminal case is that the government may have evidence at its disposal that we cannot even begin to imagine.
Luckily, it’s not all bad news. There are several ways that social media can actually help you in a criminal case. Let’s start by looking at the good side of the data collected by social media companies. While a defendant is not entitled to an administrative subpoena, as these happen before a case is filed, they are entitled to discovery and the very same data you may fear if you are guilty could help prove your innocence. For example, suppose you went to a concert and, therefore, could not commit the crime you were accused of. Without witnesses pre-social media, how do we know you were there? The location data we discussed, photos you may have taken, and, even, your presence in the images of others may be enough to tip the scales of justice.
Additionally, the same components of human nature that cause people to, more or less, confess to their offenses on Facebook also tend to work in favor of the defense. A girlfriend claiming to have been beaten up in a domestic assault case, even though she was not, may write a post about how she got that deadbeat out of the house, for example. Are the injuries not as bad as claimed, did theft or destruction of property not actually cause the victim to lose that much, these are all possible things that people will discuss on social media. Like any tool, social media can, also, be a good thing.
A red herring, aside from referring to a bird, is a piece of information that is misleading. In trial practice, it can be thought of as neither helping nor hurting either side. Social media can be a very real problem for the prosecution and defense. Information travels far faster than ever before and, when you are investigating or trying a case, it makes for some strange consequences. First, finding good witnesses is crucial. While eyewitness identification is notoriously unreliable, when administered correctly, there are at least some safeguards in place. Things change if a witness can whip out a phone and scour the faces of people they think may be involved in an offense. When an eyewitness decides that a person is the person they are looking for, it can be nearly impossible for them to conclude otherwise.
Additionally, once a case goes to trial, it can be really hard to find jurors who are impartial. Information travels so much faster when it is shared among peers. A Facebook post may reach thousands of people within minutes of being sent. When people discuss things going on in their communities, it is easy for others to develop opinions. Opinions people develop can be very difficult to overcome. It is crucial that people on trial are afforded a jury comprised of people who have not yet made their minds up about the guilt or innocence of the defendant.
What Can Be Done?
There are numerous ways that social media can affect a criminal defense. Still more exist when we consider the facts unique to an individual situation. Trial attorneys learn valuable skills to address these situations. Michael Arbeit, as a criminal defense lawyer, is part investigator, part counselor, and part advocate. If you are charged with a crime, there are several things that he can do for you. Experienced lawyers can help discover and use good facts, mitigate bad facts, and are skilled at working with jurors.
It should come as no surprise that, like most other things in the law, obtaining and using evidence is vitally important. There are procedures for everything. Trial attorneys understand that in order for it to be useful, it must be collected properly and all the steps in the procedure must be followed. When it comes to bad evidence, there are often ways to attach its credibility, attempt to prevent its admission or work with the good facts to ensure that justice is served. In particular, skilled advocates can help jurors understand why information from social media that looks bad does not relate to the crime as charged.
Finally, there is little to be done before a trial to prevent information about a crime from spreading throughout a community. The job of a lawyer in jury selection is to ferret out any potential bias that exists. To that end, lawyers spend a lot of time practicing the questions to ask and how to ask them so that jurors can confess the opinions they walk into the courtroom with. Additionally, the emerging issues related to eyewitness identification’s unreliability are at the forefront of any attorney’s mind at trial. Similar to jury selection, they spend time studying and practicing talking to jurors about how it is perfectly normal for a person to be one hundred percent sure someone is the person who committed a crime and still be wrong.
In the United States, we strive to have a criminal justice system that is fair for all and accessible to the people. The complexity added by the almost ubiquitous use of social media makes it more important, now than ever before, that if you are accused of a crime you consult a criminal defense attorney. Contact our criminal defense attorney for more information.