Don’t Talk About Your Criminal Case on Social Media
The destructive impact in a criminal case of a careless post on Facebook, a vengeful tweet on Twitter, or a lengthy entry on Snapchat, cannot be underestimated. The sheer number of social media users has exploded over the past 10 years decade. Seventy eight percent of people in the United States, 7 out of 10 have of us have one or more social media accounts. Facebook alone has over1 billion users Twitter over 320 million.
Social media platforms are transforming the way we understand law enforcement ..and it is happening very, very quickly.
More specifically, social media has given law enforcement unprecedented access to the most intimate information on the public. Facebook and Twitter can give the police an opportunity for undercover two way communicationwith the public in real time about ongoing incidents and events.Law Enforcement is Wise to Social Media
The police see social media as a new crime-fighting tool which has proven to be one the most fruitful sources of information for law enforcement investigations. Police investigators now routinely run multiple and comprehensive searches on the net using software that is much more sophisticated than the apps available to the rest of the public.
The searches they run are fast, very fast, and these specialized searches can yield the most minute facts or information that could alone be useful or can be used to create leads to other ways of making the Government’s case against you.
The estimates, as of 2017, are that four in five police departmentsnow use various forms of social media as a tool in criminal investigations. A specific, well cited survey of over 1,221 federal, state and local law enforcement has established that 90 percent of law enforcement officials used social media “to gather intelligence” during many different types of investigations.
Some of these investigators run searches of social media on an ongoing basis some once a week or more. These same investigators claim that social media helps them to solve crimes faster. Some call it the future of policing.
Law enforcement, using sophisticated databases merge information “scraped” from social networks and then, using high speed computer programs, analyze the data and establish links between suspects.The False Feeling of Privacy Small Online Clues are Kind of Like Fingerprints
Imagine the impact of the mistake of posting information about a possible crime with online friends. Facebook online posts can and do provide information on a suspect’s mental state, their whereabouts at the time of the commission of the crime (impacting alibi defenses) and linking the post to facts known only to law enforcement about how the crime was allegedly committed.
The reason not to post online is the same as the reason you never want to speak to the police. Even seemingly innocuous information can be used by clever prosecutors to build a stronger case against you. Minor details that are disclosed even when they appear to be harmless narratives about the commission of a crime such as comments on an ongoing investigation could impact and jeopardize the outcome of your case.
“People post without realizing the consequences, and any change to preserve privacy has to start with greater awareness by users”
The Electronic Frontier
Put directly by posting online you could be inadvertently giving the prosecution evidence to use against you. Don’t do it.Only Speak Or Write To Your Lawyer Your Communications Remain Secret And Protected
If you are under investigation, or charged with a crime, you must keep a very low profile speaking ONLY to your criminal defense lawyer and to NO ONE ELSE.
When you, your family, or your friends post on the internet and broadcast details relevant to your criminal case you could potentially be damaging the defense of that case.
Some simple rules are:
- If you are asked a question by a friend or family member on social media about an investigation or an ongoing criminal case DO NOT RESPOND.
- NEVER post about your case, especially about tactics or your defense strategy.
- BE AWARE that a post by another may be what I will call “pretext bait” trolling the internet trying to get you to communicate with what later turns out to be law enforcement… a trap for the unwary.
It is well known to the police that certain psychological needs exist in all of us to “brag” about their cases has long been a problem for those who may have committed crimes. This need for attention, even negative attention, is well understood and often leads to the downfall of those targeted for a crime.There is no Such Thing as a “Private” Account No Platform is Safe
There truly is no such thing as a “private” posting. Marking posts and photos shared online as private are not confidential or “secret.”
Setting your account to allow family and or friends to “see” your information may enable the police to gain access to your account by a Court Order.
I repeat, even if you set your accounts to “private” they are not secret or confidential. Police investigators or District Attorneys who develop probable cause to believe you may have posted relevant information to an ongoing criminal case or investigation may obtain a search warrant to seize your Facebook, Twitter, or Instagram account without notifying you or your lawyer.
Social media platforms such as the big 3 Facebook, Twitter, Instagram and other social media companies will respond to legally issued subpoenas, court orders, or search warrants (and in so called “emergency situations” below without a subpoena or search warrant) by handing over your online content.No Fourth Amendment Right to Privacy?
Criminal defense lawyers across the country have argued that the Fourth Amendment, which shields people’s homes and effects against unreasonable searches and seizures, protects online posts including those that have been directed to “friends.” The law is this online “users” do not have a Fourth Amendment protection privacy right when they store information with a third party the sharing of the information “breaks” any claim to privacy.
While a right to privacy has been argued by such groups as The Electronic Frontier few Judges agree finding for the most part that, posting online forfeits any expectation of privacy when these postings a “shared” online with friends. The “virtual” world is therefore analogized to the real world not only can your “friends”inform on you to law enforcement you can be tricked into hurting your case by online “plants” such as the police acting in an undercover capacity hoping to catch you in the act.Giving Access to Information to Your “Friends” Removes Your Right to a Constitutional Expectation of Privacy
This is an important point and bears repeating when you share your information with your Facebook friends and your Facebook friends then give police access to your“private”information, you lose all claims to privacy when those friends share those details with the police. Any “legitimate expectation of privacy” ends when you disseminate posts to your ‘friends’ because those ‘friends’ are then free to use the information however they want which includes that information with the government.The Use Of Fake Social Media Profiles As “Bait” Not Illegal
The police are allowed to go “undercover” online through the use of fake profiles or “covert accounts” to befriend suspects. Social media platforms may discourage the use of so called “fake accounts” as bait but the practice is not illegal and the evidence that is collected in this way may hold up in court see below.
It is believed that almost 9% of accounts are believed to be fakes or duplicates and since 90% of police departments use platforms such as Facebook as an investigating tool they are looking at your private information if and when you “friend” them.The “Emergency Exception” to the Usual Social Media’s Standard of Requiring a Subpoena or Search Warrant
A little known practice is important to note here. There may be times when law enforcement will make an “emergency request”for user information if they think there’s an imminent threat of danger. They will claim that the emergency circumstance represents a “credible threat of violence” and then try to gain immediate access to someone’s social-network data.
Almost all of the online social platforms have 24-hour hotlines to handle emergency issues such as these requests. These platforms, for the most part, require that the threat is present, specific and immediate.Social Media Evidence is Admissible in Court With a Few Evidentiary “Hoops”
Acquiring, carefully preserving and then authenticating seized website information for the admission of social media and other forms of digital evidence in court is a reality.
The standard rules of evidence of course apply to this as well as all other evidence.
Social media to be admitted as evidence must be:
- More probative than prejudicial.
- Overcome objections based on hearsay grounds.
and it must be:
Proof of ownership is often the most critical roadblock to the admission of this evidence.
The proponent of this kind of evidence must somehow be able to show that the person targeted for the admission of the evidence not only owns the account, but that they wrote the text in question..
Different states approach the authentication, and therefore the admission of “social media evidence,” in different ways which will not be addressed here except to write that in most states this kind of evidence can be “authenticated” only through the testimony from the creator of the social media post; hard drive evidence or internet history from the purported creator’s computer; or information obtained directly from the social media site itself.
Social media evidence is not self-authenticating even if the platform certifies the site the proponent of the evidence must use “extrinsic evidence” to authenticate the evidence.Using Extrinsic Evidence To Authenticate Social Media Posts
To admit social media evidence at trial which can be used by Either Side in a Colorado criminal case, some of the relevant factors to consider are:Whether the person to whom the proponent of the evidence is alleging that the evidence shows that username shown on the profile page is attributed to the persons against whom the evidence is offered;
- Whether this person has shared his or her social media password with other people;
- Whether the proponent can identify by using for example a photograph on the person’s or entity’s profile page that can identify the person to whom the proponent wishes to attribute the posting; and
- Whether there is other personal and therefore unique information on the website that corresponds to the person to whom the proponent wishes to attribute the posting.
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The contents of this article are based upon my research, my personal experience and my personal analysis and opinions developed from my thirty six years (as of 2017) of criminal trial experience from both sides of the courtroom as a former career prosecutor for Arapahoe and Douglas Counties (13 years) and as the owner of my own Criminal Defense Law Firm since 1999 (18 years).
The reader is also admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.
If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm 303-627-7777.
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