Video: We explain how prosecutors can use social media evidence against you in court.
Since public postings on social media are not protected, anyone, including law enforcement, can view the content you post online. As such, there is no reasonable expectation of privacy, meaning prosecutors can use social media evidence against you without requesting a warrant.
Attorney-client privilege does not generally apply to social media content, either. Even if you limit your posts to “friends only,” it is still publicly visible in some places and can be reshared across networks. Simply put, it is practical to assume that anything you share online can be traced back to and used against you, no matter what anyone says.
New Mexico criminal defense lawyer Marc A. Grano explains how social media evidence works and shares a few essential tips on dealing with prosecutors and law enforcement. Grano Law Offices, P.C. wrote this post for people facing charges or their concerned loved ones.
Prosecutors Can Obtain Social Media Evidence
Although many individuals and businesses use social media, there are still legal issues regarding discovering digital information and criminal courts. For example, social media in our state is subject to the New Mexico Rules of Evidence. As such, it is reasonable and pertinent to anticipate that prosecutors will use social media posts against you if they find incriminating evidence that speaks to their theory.
Prosecutors could locate and find the following types of social media evidence:
- Statements that imply guilt by the defendant
- Photographs and selfies taken during the commission of a crime
- Videos taken during the commission of a crime
- Metadata, including date, time, and location tags
- Comments that you have made on other people’s posts
- Conversations that took place in direct messages (DMs)
- And more
Remember that even though you can delete posts from your social media accounts, this action does not erase your digital footprint. The information you share will continue on social media web servers and be retrievable even after you delete it. Prosecutors need to know that it existed at one point to find it.
While law enforcement or prosecutors will need a subpoena to obtain server evidence, it is imperative to recognize that the content you post is never erased. In some cases, deleted social media posts can result in other severe ramifications against you, including allegations that you were obstructing justice or attempting to cover up a crime.
Read the legal text of NMRA § 11-901.
Social Media Do’s and Don’ts When Dealing with Law Enforcement
You are right to feel overwhelmed after your arrest or the arrest of a loved one. It is easy to get swallowed by fear, frustration, and anger. However, I recommend that my clients not post to social media regarding their cases, even if they need to blow off steam, since doing so can complicate things.
Here are two rules of thumb to remember if you face criminal charges: 1) Posting to social media about your case is a bad idea, and 2) It can also aid the prosecutor’s case against you.
At a minimum, make sure that you:
- Do not share information about your charges, investigation, or arrest
- Avoid posting any new content to social media whatsoever
- Do not attempt to delete posts to hide damning evidence
- Refrain from accepting new connections or friend requests sent by people you do not know
- Tell your family members and friends that you will not answer any questions about your case online
- Stay away from the social media profiles of your accuser(s)
- Turn off social media automation tools you have implemented for personal use
While keeping your case off social media may seem frustrating and unrealistic, remember that your future is on the line. Law enforcement and prosecutors are not on your side when they think you have committed a crime. Please do not leave your case to chance by allowing social media evidence to ruin what could be a beatable case.
Hire a Criminal Defense Lawyer in New Mexico to Fight Your Charges
When you face criminal charges, it is a guarantee that the prosecutor will engage in the process of obtaining evidence. Hire a New Mexico criminal defense attorney instead of letting them build a one-sided theory against you. We will investigate the facts independently and challenge the flimsy evidence that the prosecutor is using.
