Social Media as Evidence in Criminal Proceedings

I have been an active social network user since I was in high school. I use Facebook, Instagram, Twitter and LinkedIn to share posts with family, friends and colleagues. I’m always cautious of my privacy settings and the importance of sharing information with only people in my network. But some people aren’t so wary. Social media is everywhere and 91% of online adults use social media regularly. Social networking has grown more rapidly than the laws that govern it. I would like to be a prosecutor and was curious as to how social media can be used in criminal proceedings. This blog post will focus on the  authenticity and admissibility of social media in criminal proceedings. I’ll also share some recent news articles discussing how social media is being used in criminal proceedings. When reading this blog post, ask yourself, is this how you think law should develop regarding social media in criminal law?

Right now, the laws on admissibility and authenticity of social media content in criminal proceedings are all over the place. In my readings for this week, I read a law review article that discussed several cases showing the distinctions in admissibility and authenticity in various jurisdictions. The article came to the conclusion that there are two “camps” that jurisdictions can fall into with regards to admissibility and authenticity of social media posts: The first camp would exclude social media content because there is a possibility that someone other than the profile user created the social media content. Because of this possibility, these jurisdictions believe that social media content should be excluded. The second group would include social media content as long as the party introducing the evidence could abide by Rule 901 of the Federal Rules of Evidence. This rule lists ten ways, although the rule says there could be more, that a party could authenticate or identify evidence. As long as a party introduces enough facts, this camp believes the evidence should be authenticated.

The law review article discussed also how Federal Rules 104(a) and 104(b) and Rule 401 interact with the authentication and admissibility of social media content. According to the article, if a trial judge thinks social media content is authentic and if the opposing party objects to the authenticity, a judge may conditionally admit the evidence and allow the jury to decide whether the content is authentic or not.

This seems worrisome to me for several reasons. First, some jurors may not understand social media fully and may have a hard time deciding the authenticity of a post. Secondly, if the social media post was acquired unconstitutionally by the government, then there is a risk of infringing upon a person’s Fourth Amendment right to be free from unreasonable searches and seizures, a topic I will explore in my seminar paper. If the content is gathered from a social media networking website and not from a third party mutual friend of the content creator, the authenticity and admissibility would probably be harder to challenge.

However, if the content is gathered constitutionally, I think the way the second camp thinks about authenticity is the way of the future. Using the Federal Rules of Evidence to form arguments and using supporting facts on a case-by-case basis is how content should be analyzed for authenticity purposes. I think as members of the judiciary retire and younger judges take the bench, we will see more fact finders with more of an understanding of social media making these evidentiary findings. I believe until people with knowledge of how social media works take the bench, we will continue to see inconsistencies in how social media is used in criminal proceedings mostly because some people just don’t understand how social media sharing works. What do you think? How else do you see the law in this area becoming more consistent?

I’d like to now turn to some recent examples of how social media is being used in criminal proceedings. In 2013, there was a case in South Florida where a husband allegedly murdered his wife and then posted a picture of her dead body on his Facebook profile along with a Facebook status where he admits he is going to jail. Derek Medina is now charged with first degree murder. Mr. Medina’s photograph went viral. He ended up confessing to the Miami Dade Police Department. If you were a prosecutor, what arguments would you make for the authenticity and admissibility for this type of admission on social media?

Another recent case I read in preparation for this blog post was Elonis v. United States. It is perhaps one of the biggest cases dealing with social media content in criminal proceedings. It dealt with a First Amendment issue arising out of using content shared over social media.

In Elonis v. United States, a man posted several Facebook statuses using the nickname “Tone Dougie.” He made threatening remarks about several people in his life including his ex-wife, a co-worker, and a FBI agent. The wife had a court order for protection and Elonis was eventually convicted for some of his threats. He appealed arguing he had a First Amendment protection to his content on his social media profile. He compared his posts to Eminem’s dark lyrics about killing his own ex-wife. In a 7-2 decision, the Supreme Court didn’t even address the First Amendment argument. Instead, the Court argued that the interpretations of the threatening messages didn’t matter when it came to Elonis’s posts. The Court said, what mattered was Elonis’s intent behind his posts. The Court reversed and remanded the case for the lower court to determine Elonis’s intent and whether or not he actually meant what he said or whether he was just exercising his First Amendment right to free speech.

Just this week in Florida, Jason McQuillen in Lakeland was arrested and charged with four felonies for several Facebook posts he made in a public group of about 7,500 members. The linked article quotes the Facebook posts from the police affidavit. He allegedly posted in a Facebook group a request to attack a person he knew and he offered to pay the attacker. It will be interesting to see if McQuillen will be able to make an argument similar to Elonis. Will it be successful?

Overall, I think it is clear that this area of the law needs to develop more. I would like to see the Supreme Court give more checklists for prosecutors with regards to how to introduce social media evidence during criminal proceedings. For now, prosecutors may use the Federal Rules of Evidence to prepare and make arguments for using content from social media websites with regards to authenticity and admissibility. I look forward to hearing what you all have to say regarding how you think this area of the law should develop.


~ by cdevarona2016 on September 27, 2015.

11 Responses to “Social Media as Evidence in Criminal Proceedings”

  1. I agree with Christina that finding a logical way to interpret the evidence rules to allow social media posts to be used in prosecution is preferable to just excluding all of it due to authentication concerns.

    I was skeptical while doing the readings about the importance of this, because the generations that Christina mentioned who do not understand social media can tend to overstate the importance of effects of social media in certain ways when they attempt to analyze it. Whether it be the importance of hashtags to a police force or the fact that it really is not going to help much with sophisticated criminals, as I read I began to wonder if we were placing a bit to much emphasis social media’s prosecution application.

    At the same time, I recognized that it was still extremely important when it came to prosecuting the dumb. While I doubt Twitter or Facebook can take down any criminal with half a brain, it would be silly not to use such outlets for evidence if there are people dimwitted enough to post on their profiles about selling their kids or getting away with a hit-and-run, just to mention a couple examples from our reading this week.

    In some of the other examples from our reading, the perpetrators of crimes who had checked in at locations on Facebook not long after commission of the crime, thus taking care of authentication immediately. Restricting the use of all social media as evidence would seem to be foolish given the possibility of it resulting in a standstill in what would otherwise be an open-and-shut case.

    Hopefully the laws can find a way to adapt so these obviously worthwhile applications of social media in criminal law can continue, while at the same time recognizing that we cannot expect those smart enough to pull of large-scale crimes likely are not going to make things so easy on authorities, and that resources to track down such criminals should probably be allocated elsewhere.

  2. Firstly, I find this topic area to be really intriguing and am glad someone is discussing it. It’s the kind of issue I’ve read about from time to time, yet somehow, tend to forget it exists until the moment I’m about to click ‘post this status’ on Facebook and think to myself, “yeah…maybe I shouldn’t put out such an intense post about All Lives Matter supporters.”

    Getting into the two opposing sides the instant post mentioned, whether all social media content should be excluded or whether it should be included having met a certain threshold, I would say I am staunchly in support of the latter group. Given the propensity of so much crime being committed by people with such little intellect (putting all sorts of societal, economic, and racial facts aside), if there is a tool or set of tools allowing the government to better facilitate punishment of people that so easily incriminate themselves through social media activities, I’m all for it. Honing in on the examples of people posting photos of themselves before, during, or after a crime, or checking themselves in afterwards, I feel that if the people were dumb enough to get caught in such a foolish and easily avoidable manner, let the State shoot fish in a barrel.

    Where my concern comes in however is where the State may be overzealous in its pursuit of admissible social media content and its attempt to construe what might be standard personal expression which many of us engage in, and then trying to turn it into incriminating evidence, or slanting it in a way such that it doesn’t accurately reflect the originator’s attempted or intended consequence. To use a poor analogy, I view it somewhat similar to particular off-color jokes a comedian may tell in their act that gets put on youtube, thus upsetting people on social media who respond and critique it not based on the situation of the joke or environment of the act, rather, with their own agenda. What I mean is, I do find it concerning if these “older” jury members, or members of the judiciary, who don’t accurately understand social media, its uses, its contexts, or its roles in popular society and are more likely to view it in a detrimental fashion to a particular defendant.

  3. This topic was very beneficial to read about because I am currently working in the criminal defense clinic. Just last week we had a client come in and we were talking about his case and he told us that the victim had posted on Facebook about the incident. I immediately said that I wanted to find the post and my supervisor and I immediately had a discussion about how we would get the post in.

    I agree that we might be trying to rely on social media too much in criminal proceedings. However there are the people out there that are ignorant enough to post about their antics online. As someone that wants to be a defense attorney, authenticity is important because it is so easy to create a fake account.

    I also agree with Josh that we probably should not allocate such a great amount of our resources in investigating towards social media. The article we read about the Boston Marathon Bomber said that a great deal of time and money was spent combing through all of the tips that were sent. Many of which probably were not beneficial. While social media is an easy way to get the public involved we have to be wary of the people that are going to send in false tips and people that really just don’t know what they’re talking about.

  4. I don’t think any social media post should be protected by the fourth amendment. Even with strict privacy settings on, I do not think someone could have a reasonable expectation to privacy when they post something to Facebook or twitter. The reason they posted the comment was to share it with people. They cannot then claim a subjective privacy expectation. As Christina pointed out, I think that the authenticity of the posts is the biggest concern. I think that there is a problem with allowing the judge to decide if a post is authentic. All judges and juries do not have the same knowledge of how social media works.

  5. While I agree that social media should be allowed to be used in court, I share the first camp of jurisdictions’ concerns about letting in social media evidence. I think that there should be a high standard for authenticating the evidence because there are a lot of people out there impersonating others online. I definitely don’t think that evidence should be admitted for the jury to decide because, like Christina said, there are people on the jury who may not understand social media enough to decide on the evidence’s authenticity. My parents have been on Facebook for years and still don’t fully get it.

    The cases mentioned in the post remind me of the Cannibal Cop case (though I believe his posts were in a chat room and not on Facebook). It’s hard to say whether posting about attacking someone has intent behind it, and I think it would be difficult to prove in court. Posting things online always seems to have the issue of tone and context. What may be a joke (albeit an offensive and unfunny one) or venting to one person may be taken seriously by others. I think it would be hard to convict someone for just saying they want to attack a person.

  6. There seems to be a lot of agreement on this topic and I will not break the trend. I think that things you put out on public social media forums should absolutely be admitable in a criminal trial. The authentication problem is one that I believe will become more clear as those who are handling the evidentiary decisions become more immersed in the social media age. Those rules do need to become more clear. The idea that the legal system could leave determinations of whether something is an authentic piece of evidence to people who are not experts seems ludicrous to me.

    As far as the use of resources on social media posts, I think that we should leave it to the experts on the police forces. The resources that were mentioned in the readings did not seem like too large an expenditure. If a police officer wants to look up to see if a suspect has a social media presence and then use that to investigate further, I say more power to them.

  7. I honestly hadn’t considered how social media would affect criminal law, trials, and all that. I am probably one of the few NOT to have taken Evidence yet, so I guess that’s part of why I’ve been oblivious. Both what you said about how the use of social media is evolving as evidence along with our reading about how police are starting to use it is super interesting. As commented above, there are a lot of “dumb” criminals. Jay Leno made a living once a week doing a sketch about “stupid criminals” on his late night show.

    Jeff made a comment above about how no one can has a reasonable expectation of privacy but I think it’s an interesting argument. For instance, on Twitter, you can lock your account and only allow the people you want to see your post. So, I’m not sure how different that is from when you are in a room with certain people and don’t expect people outside of that room to hear what you are saying. I can see both sides, but I think both have merit.

    Christina also hit the head on one of the bigger issues though and that is judges and juries don’t really understand technology. Similar to what Josh said last week, and it is cliché at this point, but the law and older judges simply just do lag behind with respect to technology. The social media argument is obviously another step past traditional “technology” too. I don’t really buy the authenticity argument of “you don’t really know who posted it!” even though it does have a little merit. I agree with you in that I just don’t think there is enough law there to really tell us too much, though I’m sure you will dig deeper into that in your paper.

    Looking forward to our discussion tomorrow. Thanks Christina.

  8. I must start off by noting that this blog was incredibly interesting to me. I honestly never really thought about social media being utilized as evidence in criminal proceedings until this summer.

    Over the summer I worked at a law firm and was assigned a pro bono case that dealt with this exact issue. The case that I dealt with involved an individual suing a hospital for an alleged slip and fall due to an improperly lit staircase. The individual in this case said he was unable to walk or complete his normal day-to-day activities due to his severe injuries. As a summer associate I was told to delve deeper into this case due to some inconsistencies. I started by researching his Facebook and noticed that he posted a photo of him jet skiing the day before the mediation was set to take place. I shared this with the assigning shareholder and it was successfully used as evidence against this individual.

    Reading this post reminded me of that case and I began to ask myself why social media is not used more in criminal proceedings. I know this can be a touchy subject because I would imagine that it would be difficult to draw the line and not violate someone’s freedom of speech or privacy for that matter. I agree with Will and his concerns about how social media would exactly be used as incriminating evidence. I think it would be easy for social media to be misconstrued and taken out of context, especially when prosecutors may actively be trying to find something to help them incriminate someone. However, I do believe that social media should be used in criminal proceedings but I think the context in which it is used or what exactly is being used needs to be defined a little more.

    I am interested in seeing how this evolves in the near future! Cristina I look forward to seeing your thesis and what you find in regards to this social media topic.

  9. Thanks for your post, Christina. With respect to the issue, I’m curious how the state constitutional right to privacy would apply for social media. Article I, Section 23 of the Florida constitution reads:

    “Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”

    In what scenarios could it be argued that social media evidence, even if published publicly, is part of ones private life?

    This summer I did a lot of research into the laws of privileged communication and attorney work-product. I can draw a parallel with the way social media evidence is admitted with the way privilege law is applied. With privilege, the extent to which you go to protect the communication is usually the extent of deference you will receive from the court. Privilege is essential to the adversary system. The privilege supports the efficient administration of justice and encourages the free flow of information between counsel and their client. Notwithstanding that, the assertion of the privilege necessarily interferes with the truth seeking mission of the Court which is why the Court’s are eager to recognize a waiver of the privilege, whether or not the waiver was intentional.

    Similarly, the extent to which you go to assert your right to privacy in any sort of online post is the deference it should be given in court. Increasingly, posters must be accountable for their identity, and unfortunately, it has become something that must be managed. Careers have been made and lost with less than 160 characters on twitter. We are presently in a time where we have more data than we know what to do with. Intrusions into our online identities is just one piece of the evaporating privacy rights that were once something our society held as inviolate. I think any sort of short term answer depends on mitigating the risk of unfair prejudice to a criminal defendant or civil plaintiff. How is that done? Juries and triers of fact need to be reminded that the vast majority of information obtained online is not meaningful. Further, they need to be made aware that it is extraordinarily unlikely that any single piece of evidence from the internet will be entirely dispositive with respect to any charge or claim. Until then, like they say in real estate but with a twist for online posting, caveat poster!

  10. Nice job Christina and quite an interesting discussion. Let me start by dinging the whole class for believing older people don’t know about social media. The fastest growing population on social media is comprised of people over 45. And I dare say, as is evident from the trouble younger people get into as a result of posting on social media, that you all may not understand it either! More importantly, federal judges have been educated on this subject and to the extent any of us understand the ramifications of the use of social media, most of them do. As with everything in life, some judges may be better at understanding than others, but this is true for all aspects of the law.

    As lawyers we are responsible for helping to shape the law, so no, we can’t just leave this for law enforcement “experts,” whomever they may be. And law enforcement will exceed the bounds of law if left unguided. All of us, as digital members of society, and as lawyers or future lawyers, should be concerned with these issues. Here are some questions to think about for class:

    1. Can you conceive of any ways law enforcement might collect your social media data that might be offensive to you?

    2. Are social media posts with privacy settings more like email? And if so, do they deserve the same protection.

    3. My accounts have been compromised 3 times in the past 18 months by the Target hack, the Blue Cross/ Blue Shield hack, and the massive breach of the federal government data base, where information such as people’s fingerprints were stolen. None of these breaches were caused by me or controllable by me, yet my personal information is now in the hands of some darknet denizens. In the future, will it be more likely or less likely that someone’s social media accounts can be hacked or manipulated? Should we worry about that when contemplating authentication?

    4. We should talk briefly about the Stored Communications Act and how it impacts the government’s ability to get to your information.

  11. This was a very interesting post to read; having just spent the summer at the U.S. Attorney’s Office, I got to see first hand just how much the prosecutor can draw on social media posts to supplement their case. It’s kind of scary how much information there is about us on the internet, and just how much of it is readily available to anyone with a little skill at finding things.

    I don’t know where exactly I fall on the side of the argument as to whether social media evidence should be used in trial. On the one hand, I’m a huge fan of privacy, so I enjoy the idea of what I post online being unavailable to interested state parties. On the other hand, I like bad people being put in jail for the terrible things they’ve done, and that they were dumb enough to post about online. After reading the sources you linked, I came up with a little bit of a compromise.

    Perhaps a good solution is a combination of the two approaches. Sort of like the corporate “piercing the veil” notion, perhaps they could create a test to create circumstances under which it is okay to pierce the veil of privacy on an individual’s social media. It would probably be a probative value test, balanced against the victims right to privacy, or something similar.

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