In today’s interconnected world, social media has become a platform for self-expression, communication, and information sharing. However, this digital landscape also poses significant implications for criminal cases in Utah.
Social media posts can provide evidence against you in criminal investigations and influence the outcome of a case. Even seemingly innocuous posts, comments, or messages can be used as evidence against you. To defend against this type of evidence, you need a knowledgeable attorney who understands the implications of your social media use and limit potential blowback. We can also develop strategies to try to keep this evidence from coming into your case.
For a free case review, contact our Salt Lake City criminal defense attorneys at Overson & Bugden by calling (801) 758-2287.
Social Media Posts as the Illegal Conduct
Sometimes the posts you make are the actual crime. For example
- Posting actionable threats online is illegal.
- Doxing someone may violate the law.
- Posting child pornography is illegal.
In these kinds of cases, your actual posts themselves become evidence of what you did or said, and may be sufficient evidence to prove the crime, as long as they can be linked to you.
Establishing Motive and Intent
Your social media activity, such as posts, messages, or comments, can be used as evidence of motive or intent in a criminal case.
For instance, if you have expressed anger, hostility, or resentment towards a victim on your social media profile, it could be used as evidence of motive. Similarly, any statements suggesting premeditation or forethought, such as planning or discussing a crime on social media, could be used to demonstrate intent.
Proving Actions and Behavior
Prosecutors have also been known to use social media posts to establish a detailed timeline of your activities and behavior. For instance, check-ins, location tags, and timestamps on posts can help prosecutors piece together your movements and actions at specific times. Even without connecting to social media platforms, other apps and processes on your phone might also provide location data, such as Google location services (an “always-on” function of many cell phones, even iPhones).
This information could potentially corroborate other evidence or contradict your alibi, making it important to be cautious about what you share on social media.
Providing Character Evidence
Your online presence can have a serious impact on how your character is perceived by a jury in a criminal case. In general, Utah courts tend to restrict the use of character evidence during trial proceedings, but there are certain exceptions where such information can be deemed relevant.
If your social media activity displays a consistent pattern of behavior or attitude that aligns with the crime you are being charged with, it could potentially be used as evidence that you would engage in certain patterns of behavior.
Establishing Contact with Coconspirators or Dangerous Offenders
It is also important to be mindful of who you interact with on social media, as it can have significant consequences in your case. Any connections or communications with known criminals, criminal organizations, or suspicious individuals could potentially be used as evidence of association or conspiracy to commit a crime.
This means that photos, tagged posts, or messages showing you with these individuals could greatly strengthen the prosecution’s case against you. Thus, be sure to carefully consider who you allow into your social media circles and avoid any questionable associations that could potentially put you at risk.
Revealing Contradictions
You can be sure that prosecutors will scour your online presence to uncover any inconsistencies in your statements or testimony. This means that any posts, messages, or comments you have made on social media platforms can be used against you in court.
If the content of your online activity contradicts what you have told the police or testified in court, it can significantly harm your credibility and weaken your defense.
Demonstrating Consciousness of Guilt
Keep in mind that if you have been charged with a crime, deleting your social media posts or accounts might not be a wise decision. This is because prosecutors could potentially argue that your actions demonstrate a “consciousness of guilt.”
In other words, they could suggest that by attempting to hide or destroy evidence, you were implicitly admitting your guilt. This could potentially harm your case in court and make it more difficult for you to prove your innocence. Therefore, we generally recommend that individuals facing criminal charges in Utah avoid deleting any potentially relevant social media content and instead consult with our team on the best course of action.
Are Private Posts Private from Police and Prosecutors?
Not necessarily. Users who are already following you could be asked to turn private posts over to the police. Social media sites can also be forced to give up all posts – even hidden or private ones – with a warrant.
Many sites even create backups and histories independent of what you post or delete. Remember, once information is on the internet, it is virtually impossible to get rid of. Even posts you think are private might end up in prosecutors’ hands, so be careful what you end up putting out there.
Contesting Authorship of Posts
To convict you based on a post, the prosecution needs to prove the account belongs to you and that you authored the specific posts in question. If your attorney can create reasonable doubt about the authenticity of the evidence, the court might exclude it from your case.
For example, if you left your computer logged in, and someone else accessed it, it might not have even been you. The same is true if someone else accessed your cell phone.
Online Posts as Hearsay
Hearsay, or out-of-court statements offered for the truth of the matter asserted, are generally inadmissible in court. Social media content typically falls into this category, as literally any statement not made on the stand could.
Your attorney could argue that posts or messages from your social media accounts are hearsay and should be excluded as such. However, if they are posts or statements that you made, they may be admissible, as statements by the opposing party usually are admissible even if they would otherwise be hearsay.
“Prejudicial Evidence”
The court can also exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Social media evidence, particularly posts that might cast you in a negative light, can be unduly prejudicial.
Your attorney could argue that such evidence could unduly influence the jury’s perception of you and should, therefore, be excluded.
What Social Media Posts Can Be Used Against You?
Posts from any social media site could potentially be used against you. This includes anything from text posts to photos to videos. Even the tags on posts or the metadata of a post – such as the geotag of where a photo was taken – can be used.
It all depends on what the police and prosecutors are trying to prove, and what data they have available to them.
What Social Media Sites Refuse to Obey Search Warrants?
Generally, all social media sites comply with lawful warrants. Meta-owned companies like Facebook and Instagram, as well as Twitter/X and other social media sites are not in the habit of getting into fights with the police over user data.
If they have a court order to turn over information or comply with a search, they will usually comply.
Can Police Seize DMs and Private Chats?
Social media sites often have direct message/private message systems, and your DMs are not safe from police, either. They can often obtain copies of chat logs from the social media site itself, or they can ask other people involved in the chat to turn over copies, and they might comply.
Encrypted messaging systems like Signal prevent the company itself from having access to the encrypted chats, but the person on the other end of the chat could still turn over the chat. Automatically deleted messages, like those on Snapchat, may also be recoverable in some cases.
Is it Considered Wiretapping for Police to Spy on Social Media?
Police and prosecutors need special warrants to “spy” on people with wiretaps and other listening devices. Social media sites and posts are not covered by any of those special rules, especially if the posts are public.
It may be that all the police need to get copies of your posts is an account on the social media site, where they can log in, view your posts, and use them as evidence against you.
Do Police Violate Terms of Social Media Sites by Using them for Law Enforcement?
Social media sites can always kick users off if they determine they violated the terms of use or community guidelines of the site. Sites and apps often have rules against impersonation or misuse of the site. Police very well might violate these rules by making fake accounts to get into your DMs or trick you into accepting them as a follower.
This might get them banned from the site, but social media sites are not likely to pick fights with the police. Even if they got the posts through lies or violations, that doesn’t stop them from being used against you in court, and we need to assess those legal avenues.
Can the Court Limit How Much of Your Social Media the Prosecution Can Use?
The prosecution usually will not spend hours of courtroom time showing the jury every social media post you’ve made. They instead limit them only to the posts or chats relevant to the case at hand.
This means we can often get the court to stop the prosecution from putting certain posts into evidence if they are not relevant enough or would be too prejudicial.
Can We Introduce More Posts to Counter Their Evidence?
At the same time, we can introduce additional posts if we need to contextualize what you’ve said. For example, if you are accused of threatening someone, but we have multiple posts back and forth showing that this is just how you talk to a friend in a joking manner, we can undermine the claim that any of this language was threatening at all.
Adding context can often take the teeth out of what might seem really bad in a vacuum.
Our Utah Criminal Defense Attorneys Can Help Defend Your Case
Call Overson & Bugden at (801) 758-2287 for a free case evaluation with our Ogden, UT criminal defense lawyers.
