Chicago Criminal Lawyer Blog
The law in Chicago is catching up to the reality that social media is a normal part of our daily lives. Currently there are new laws and rules of procedure that are designed to ensure that social media evidence can be used in court. The problem remains that evidence gathered from social media posts can be unreliable. There have been cases in which postings from Twitter and Facebook have been presented as evidence of crime, but the court has rejected them because they are not reliable.
From a personal point of view, all the posts that you make on social media can potentially be used against you in criminal trials. Even employers are now allowed to view your social media posts when they are made using their official equipment at work. The person who is posting can make use of the privacy options on the social media account in order to reduce the risk of being exposed later on when the police agencies are trawling for evidence. The Stored Communications Act (the SCA) of 1986 is a federal law that tries to provide some protection for posters.
Social Media Postings and Criminal Trials
Deleting social media posts does not mean that they cannot be subpoenaed by the prosecution if they want to prosecute a case. That became clear in the Kennedy Bridge protest case, where the defendant had waged a public and often successful campaign. The law states that if the poster deletes his or her postings in order to avoid prosecution, that person can be charged with further crimes because he or she is effectively obstructing the course of justice. It is imperative therefore to contact reputable lawyers as soon as you are charged with any crime where the evidence could be gathered from your social media posts.
There are certain crimes such as stalking and harassment for which social media posts are often the instrument that is used to commit the crime. In this case, the profile or account is a scene of a crime and the police or prosecutor can get all the records to help them with their investigations. Another thing that defendants have to remember is the need to share all the posts with their lawyers just in case there is something there that could harm the defense. It is better to deal with the issues before they actually happen rather than trying to do damage control after the event.
Specific Rules for Discovery
The social media posts will require discovery before they can be included in the prosecution or defense case. Either the defense attorney or prosecutor will send out a preservation of evidence letter to ensure that it is not tampered with. This procedure happens in all types of cases including ones that involve domestic violence. The letter is typically written in simplistic language that is designed to ensure that the other side cannot later claim that they did not understand what was being communicated in the letter.
In the age of permanent internet records, judges are generally unsympathetic to anyone who loses such an important piece of evidence. In terms of the defense strategy against social media evidence, it is important to show one of two things:
- The defendant did not post the offending material
- The defendant posted the offending material but with no intent to cause harm
These two elements are often the anchors for any criminal defense strategy in this particular area of the law. Sometimes harm can be done by third parties using material that was innocently posted. This is true for defamation cases in which the prosecution can go ahead on account of negligence or failure to act in a reasonable manner.
Contact David Freidberg Attorney at Law at 312-560-7100 for further information regarding legal matters.
(image courtesy of Fabian Grohs)
