Can My Social Media Posts Be Used As Evidence Against Me?

You probably would not share the most intimate details of your personal life with a stranger you happen to meet on the street. Commonsense tells you what you say or do in a public setting generally negates any privacy expectations.

Facebook has more than 1.2 billion active users.

The more than 1 billion users of Twitter generate more than a half billion tweets each month.

Rarely, if ever, do most people give a thought to the information they are sharing through the Internet being used as evidence against them in a Phoenix criminal proceeding.

Social Media as evidence

Social Media as evidence

Potential evidence you freely share on the Internet

The content being shared through social media has gone well-beyond words or text messages.

Some of the information that can be found through a cursory search of any of the hundreds of popular social media outlets includes:

• Photographs • Videos • User location information • Personal data

Police perusing a person’s LinkedIn will usually uncover a wealth of information about the individual’s education, employment history and job skills.

As with other social media accounts, LinkedIn offers investigators the names of friends, co-workers and other people associated with the individual under investigation.

The role of evidence in a Phoenix criminal court

Criminal charges are merely accusations or allegations unless there is evidence supporting them.

Establishing the truth of those allegations can be accomplished in two ways.

You can plead guilty and admit the acts you are accused of committing.

If you do not concede guilt, prosecutors in a criminal case have the burden of producing facts in the form of evidence to prove beyond a reasonable doubt each of the elements of the crime and your commission of them.

When your attorney enters a plea of not guilty to the charges on your behalf, you are exercising your rights under the Constitution to force the government to prove the truth of the criminal charges.

A trial in a criminal case is the setting in which prosecutors must produce the evidence they have against you.

They do this through documents, witness testimony, photographs and other sources of information that support the facts that are being disputed.

Social media as a source of evidence in Arizona

If Phoenix police suspect you of being involved in criminal activities, they can use social media to help them in their investigation.

For example, anything you post without placing restrictions on who may access it is readily available to anyone using the Internet.

The Fourth Amendment to the United States Constitution protects you from unreasonable searches and seizures by law enforcement and other agencies of the state and federal government.

As a general rule, Government investigators may not search areas or things over which you have a reasonable expectation of privacy without first obtaining a search warrant that is based upon probable cause.

Reasonable expectation of privacy can best be explained by imagining someone walking along a sidewalk in a public area speaking in a very loud voice into a cellphone.

It would be difficult to later claim that a police officer who overheard the conversation had violated the cellphone user’s expectation of privacy.

Social media evidence is similar to the loud cellphone user.

Information that you post without access restrictions would probably not be protected from viewing by Phoenix police or other agents of law enforcement agencies as a violation of your expectation of privacy.

Police access to restricted social media

Social media sites such as Facebook and Twitter usually will not turn over information about their users without a search warrant, subpoena or other form of court order.

This information would include those posts to which you have granted only limited access.

The privacy settings on your social media accounts may not protect you from law enforcement investigators convincing a judge that access to the information in your account will disclose evidence of criminal activity.

Once investigators establish probable cause in this manner, a search warrant will likely be granted by a judge.

Privacy Button

Privacy Button

Even if police lack probable cause to obtain a search warrant, they might still be able to access some of your social media without violating any of your rights under the Constitution.

They can do this by getting a friend or other person to whom you have granted access to cooperate with them.

Also, information you post on the social media pages of other people raises important privacy issues.

By posting it outside of your own account, prosecutors might argue that you waived your privacy rights.

Another issue is that once posted on an account belonging to another person, it is subject to that account’s privacy settings and not to those placed on your own account.

Defending against government access to social media evidence

One of the problems associated with investigators and prosecutors having access to your social media accounts is defending against it.

Some courts have allowed defendants in criminal cases to challenge a government subpoena for social media records.

Other courts have dismissed challenges by social media users on the grounds that the records sought by the government belong to the social media companies.

Once social media information is obtained by prosecutors, its use in a criminal case is subject to the same rules as are other forms of evidence.

Rules about hearsay, relevance and the prejudicial nature of the information apply whether the evidence comes from a social media outlet or from a witness testifying at the trial.

A Phoenix criminal defense attorney should be consulted about social media

If you have been charged with committing a crime in Phoenix and social media evidence might be used against you, you should speak to a criminal defense attorney.

Only a knowledgeable and skilled criminal defense attorney can anticipate the effect social media evidence might have on criminal charges filed against you in a Phoenix court.

If you have questions or concerns, contact the attorneys at Tyler Allen Law Firm.