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Social Media Evidence Can Harm Your Criminal Defense

Social media use is woven into the fabric of everyday life for residents of Ohio and the nation. Almost everyone who is old enough to operate a smartphone has one and they have at least one social media account.

Pew Research reports that Facebook remains the most widely used platform in the United States, followed by YouTube. Two-thirds of adults have Facebook accounts and 75 percent of Facebook users check their account at least once per day.

Those under age 25 are more likely to use Instagram and Snapchat. Whatever your poison, nothing good comes from sharing every detail of your life on social media. If you are charged with a crime in Ohio, your posts on social media might harm your defense.  

Posting on Social Media Can Harm Your Criminal Defense

Social Media Evidence in a Criminal Case

Social media posts serve as evidence in criminal cases. Law enforcement and the prosecution will troll social media accounts to look for suspects, track the activity of one charged with a crime, and search for evidence to build a stronger case against those who are charged with crimes.

No federal or Ohio law prevents law enforcement from using social media to ask the public for help involving a case or from creating a fake account to gain access to posts that are private.

If you have been charged with a crime, you should assume that law enforcement will find anything they can about you on social media and use it against you in court.

Legal Processes Used to Obtain Social Media Evidence

Social media companies often hide behind the Stored Communication Act, so they don’t have to share evidence with the defense. In fact, social media evidence that exonerates a criminal doesn’t hold nearly the weight in most courts that incriminating evidence holds; and, social media companies are more eager to help out the prosecution than the defense. Authorities requested information from Facebook a little more than 42,000 times in 2018, with 39,000 for legal process reasons; Facebook cooperated 86 percent of the time.

Authorities can use the following processes to gain access to your social media postings on Facebook and other apps:

  • Search warrant. This is the most common way for authorities to gain access to a social media account. A judge will issue a search warrant if there is probable cause that evidence of a crime is in an account.
  • Subpoena. These are primarily issued for information not related to any postings. Even if you don’t post on social media, law enforcement can use your accounts to track you and get contact information with a subpoena.
  • Title III. This process refers to actions that law enforcement can take under the Wiretap Act. Under Title III, authorities can access your account in real time if they suspect you are using your account to commit a crime.
  • Pen Register, Tap & Trace. This gives law enforcement the authority to get real-time routing information like IP addresses that will be used for an ongoing criminal investigation.
  • Court Order: 18 USC 2703(d). This is an order from a judge to release content-related material once law enforcement determines that specific facts in a social media account are relevant to an ongoing investigation.

Help Your Defense by Avoiding Social Media

If you have been charged with a crime, you need to avoid social media at all costs. Even if you delete your accounts, law enforcement can get what they want or need from social media companies. Not only can you harm your criminal case, but you make it more difficult for your lawyer to fight for you.

Let a seasoned defense attorney advocate for you, build a defense, and aggressively pursue the best outcome for your situation. Contact Dworken & Bernstein online today for a free consultation to discuss the details of your case.  

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation

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