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Social Media Evidence: How Your Photos and Posts May Land You In Jail

The advent of technology has had an significant impact on the way that our society operates. These days, when an individual is involved in an activity, there is usually a photo of the activity being performed on the individual’s social media website. The idea is that we love to publish elements of our lives that make us endearing or interesting to our readers. This “open book” mentality can be significant when showing off our better qualities, but can be extremely detrimental if the photo is depicting a darker scene.

Recently in Florida, there are have been multiple defendants who have been arrested and had criminal proceedings brought against them for the photos and information that they have posted to social media sites like Instagram and Facebook. One of the defendants, known as “Crazy Goat,” published photos of himself loading guns on Instagram; he was arrested for illegal weapons possession. Another Floridian in 2013, for example, posted a photo of his dead wife whom he had just shot and a confession on Facebook. He is currently claiming self-defense.

Social Media Posts and Photos Are Fair Game for Law Enforcement

Many have asked how this is legal. Can our private information and photos from our social media accounts be scoured and used against us? Well, the answer will basically tell you that your social media accounts are anything but private. Providing information to a third party such as a social media site implies very little privacy rights. You have a low risk of expectation of privacy on these sites because you are sharing details, photos, and information about your life to the public, virtual world. Law enforcement may request information from the social media third party. Or in many cases, may acquire a warrant if the social media site is not automatically forthcoming with the information.

Acquiring this information is permitted due to an amendment of the Rules of Civil Procedure which states that electronically stored information (ESI) is discoverable in preparation for trial. This conclusion means that social media evidence is game.

The Admissibility of Social Media Evidence in Criminal Proceedings

The use of social media evidence in criminal proceedings is limited in scope based not only on its use, but also its preservation. When law enforcement is interested in information that can be found on a social media site, they will request the information from the site. Some sites, if a warrant is not involved, may notify the intended user that a request has been made by law enforcement of their intent to see the information posted on the site. This is seen as a tip-off and the user may try to destroy the information.

Preservation of Social Media Evidence

Because of this fear of destruction of evidence, law enforcement may put into effect preservation requests, in hopes of freezing the information until a warrant has been put forth or in preparation for trial. There is one website, for example, the Wayback Machine, which acts a timeline and history archive for any user. More than 150 billion pages may be stored on any one person and a user may review the pages that were surfed over a certain time period.

Social Media Evidence: What Makes it Admissible?

Preservation is not the only hurdle with regards to social media evidence. The use of social media evidence also has its own issues because the evidence must be proven in court that it should be admissible because it is reliable, relevant, and authentic. This can be rather tricky when one never knows who really is at the helm of the keyboard.

These are some of the ways in which social media evidence may be proven as admissible during criminal proceedings:

  • Authentication: many times with social media evidence, there is an issue of anonymity and fear that the evidence has been altered. In Florida, as long as there is sufficient evidence by which a reasonable person may believe that it is genuine, the low threshold of authenticity is met.
  • Personal knowledge: if there is witness who can attest to the information as being genuine and authentic.
  • Distinctive characteristics of the evidence: if there are distinctive traits of the evidence that would make it reasonable that only this person would have posted or published the information in question.

Criminal Defense Attorney in Fort Lauderdale

The use of social media evidence is new and quite complex. If you have been arrested based on social media evidence, it is important to be defended by an experienced Fort Lauderdale criminal defense attorney like Kevin J. Kulik who may be able to block the use of this social media evidence. Contact the Law Offices of Kevin J. Kulik today for a free and confidential consultation.

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