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The Duffy Law Criminal Defense Blog

Electronic Communications and Social Media Posts as Evidence

Technology has certainly made its way into the courtroom, including in criminal cases. Law enforcement and prosecutors now regularly use electronic communications and information from social media profiles as evidence in criminal cases. In addition, defense attorneys can sometimes use this type of evidence in the defendant’s favor to challenge the allegations.

Imagine the following situation: A young girl is driving and slams into another vehicle, killing her two best friends. The driver is suspected of driving under the influence of alcohol and police arrest her. After an investigation, authorities discover that the driver Tweeted the message “2 drunk 2 care” just before the accident took place. Prosecutors then use the information from Twitter to prove the driver was intoxicated.

The above situation actually happened a few years ago in Florida, and a 22-year-old woman pled guilty to two counts of DUI manslaughter and was sentenced to 24 years in prison and the permanent revocation of her driver’s license. This type of situation is becoming increasingly common—especially in drunk driving cases. Investigators have used emails, texts, online messages, and social media activity in many school shooting cases to determine the motive and intent of the shooters. However, electronic communications can be used in any type of criminal investigation and prosecution to try to prove the defendant’s guilt.

On the other hand, defense attorneys can also use social media and electronic communications evidence to challenge a prosecutor’s allegations. For instance, if someone sends a text that expresses regret about sleeping with a person, then later accuses that person of rape, a good defense attorney can use that text conversation to demonstrate a false accusation. This is only one of many ways that this type of evidence can actually help a defendant’s case.

Keeping Online and Electronic Evidence out of Court

Strict rules determine when a court can admit evidence in a criminal case. These rules apply to electronic evidence as well – just because it was posted on social media or communicated in a text or email does not mean the evidence is automatically admissible in court. First of all, evidence must be authentic and reliable. Courts have increasingly had to grapple with how to authenticate electronic communications or social media evidence to make sure it is what it claims to be and that it is reliable before admitting it. You need an attorney who understands the rules of evidence and how to keep unreliable electronic or social media evidence out and how to get the good evidence in front of a jury.

The court should treat electronic evidence like all other evidence—first, it must pertain to the case, which means it tends to prove a fact in dispute. The party presenting the evidence must prove it is authentic—that it comes from the claimed source. For example, an attorney must prove that a text actually came from a specific person’s phone. Even if evidence is relevant and authentic, the evidence can’t be unfairly prejudicial to the defendant.

The evidence must also be admissible under other rules of evidence. For example, a statement made in a text, email or social media post cannot be used in court just because an email or Tweet contained it. It must be properly admitted under a particular rule of evidence. Finally, the evidence must conform to the original writing and must meet the requirements of the best evidence rule.

All of these rules apply to electronic communications and social media evidence in extremely complex ways. You need an experienced attorney to try to keep any potentially harmful evidence out of court whenever possible.

Your attorney can try to suppress evidence if the government didn’t comply with laws for obtaining it from a social media company, internet provider or cell phone company. In this situation, your attorney can try to keep the evidence out of court on grounds the government illegally obtained it in violation of your Fourth Amendment rights.

Defending Against Social Media Evidence

If the court admits electronic or social media evidence against you, your attorney should know how to defend against it. Your attorney can do this by:

  • Attacking the source of the evidence – Was the evidence actually obtained from your account? Could someone else have used or hacked your account?
  • Making sure the evidence is presented in context – Isolated posts or brief exchanges taken out of context can make a defendant look guilty. The jury should hear the whole story regarding the statements to make a proper decision.
  • Attacking the credibility of the poster – If the defendant was not the communicator, would the person have a motive to send or write untrue or misleading texts, emails, or posts?
  • Using other evidence to prove what the poster said could not have happened – If someone “checks in” to a place and “tagged” you where the crime was committed, you can still prove an alibi or present other evidence that you were not actually there.

Call a New Haven, Connecticut Criminal Defense Attorney

Social media and electronic communications will continue to be important evidence in criminal investigations and prosecutions. You need an attorney who stays up to date on evidence trends and who can provide you with the best possible defense. Call Duffy Law at (203) 946-2000 or write us online for assistance today.

Duffy Law

Attorney At Duffy Law

Duffy Law has handled many hundreds of criminal matters and thousands of court proceedings, ranging from detention hearings to plea proceedings and trials at all levels of complexity, all of which have made us familiar with many of the law enforcement personnel, prosecutors, judges, courthouse personnel, and unique procedures in each judicial venue.
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