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How Social Media Can Harm Your Criminal Defense

Posted Tuesday, January 23, 2018 by Lizanne Padula.

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Prosecutors since the MySpace days have been attempting to use evidence obtained from social media in criminal cases. Currently it is not uncommon for state agencies, criminal investigators, law enforcement officers, and prosecutors to turn to Facebook, Twitter, or YouTube as a source of information to bolster criminal charges.

Everyone should be mindful of what they post to social media. Especially if you are being investigated for or have been charged with a crime, it is imperative that you refrain from posting anything on social media that could help the State make its case against you or harm your legal defense.

How Social Media Can Harm Your Criminal Defense

The following are examples of how social media can harm your criminal defense:

• A defendant posts photos of himself with illegal contraband such as drugs or banned firearms.

• A defendant posts about her reckless driving habits. The prosecutor cites the post as evidence demonstrating a history of reckless driving and argues that the defendant knew of the risk her behavior posed to others.

• A prosecutor uses the defendant’s social media posts during sentencing to refute the defendant’s remorse for his actions in an attempt to secure greater punishment from the Court.

While these are just a few examples, understand that time and time again courts have ruled in favor of the admissibility of evidence collected from social media sites.

Challenging the Admissibility of Social Media Evidence

Do not mistakenly believe that if your posts are set to “private” or set to be seen by only your “friends,” that they are protected from the reach of the government. Even if the government does not get a search warrant to view your social media pages, it may have other ways to access your social media posts. For example, if one of your social media “friends” becomes a witness against you for the State, then the prosecutor will be able to gain access to everything you’ve posted, including photos.

Certainly your criminal defense attorney can argue against the admissibility of evidence gathered from social media sites. There are a number of legal arguments to be made against the admissibility of social media evidence gathered without a valid search warrant, such as the evidence is unduly prejudicial, it reveals evidence of prior criminal convictions, it is impermissible character evidence, or it is excluded hearsay.

Written social media evidence, including status updates and photo captions, may be inadmissible based on the hearsay exclusion. Such evidence is excluded hearsay when it is a statement made out of court that is offered in court to prove the truth of the matter asserted. Wash. R. Evid. 801. However, there are hearsay exceptions which may make some of your social media posts admissible, like if your status update brags about committing a crime, that is an admissible admission of a party-opponent. Wash. R. Evid. 803.

While your attorney can argue against the admissibility of social media evidence, understand that if the Court rules it admissible then your social media posts will be put in front of the jury. Alternatively, if your case does not go to trial, the damaging social media evidence can hinder your ability to negotiate a favorable plea bargain with the prosecutor.

Hire Padula & Associates, LLC to Defend You

When you hire our firm we will evaluate the facts of your case and guide you on the best course of action. The skilled attorneys at Padula & Associates, LLC can help you fight the charges that have been filed against you. We answer the phone 24 hours a day, 7 days a week. We offer free consultations. Call us 24/7 at 425-883-3366 or contact us on the web to schedule your fee consultation today.

Our firm handles State and Federal criminal cases throughout Washington State, including King County and Snohomish County.