The Fifth Amendment to the US Constitution protects criminal defendants from being forced to incriminate themselves. Understanding the importance of protection against self-incrimination is critical in the age of social media.  While your social media posts generally aren’t forced, they can still incriminate you. The prosecution may review your social media posts and try to use your comments against you.

Our Sevierville criminal defense lawyers recommend that if you’re arrested, you stop using social media or severely limit your posts.  Social media posts that can affect your criminal case include text comments, photographs, and videos. There is also a lot of hidden information in social media posts, such as the date and time of the post and the location of any digital images. Social media post information includes who liked a post and who commented on a post as well, so investigators can find a wealth of potential information through this medium.

Social media affects many parts of a criminal case

Social media posts may be used in the following ways in a criminal trial:

Jury selection

Jury selection is the process by which the attorneys and court select people to serve as the fact finders for trials.

• The voir dire process: Federal and Tennessee criminal rules of procedure govern the jury selection process. The voir dire part of the process allows for the questioning by both prosecutors and defense lawyers of prospective jurors. Social media is a way for the lawyers to review if a prospective juror has any biases or is answering any questions in a manner that is inconsistent with their posts.
• Juror misconduct: Criminal courts generally warn jurors not to use social media during the trial. Jurors who post about any aspect of the case on social media may be dismissed on the motion of either side (the prosecution or the defense). Posting on social media in violation of the judge’s instructions could result in a mistrial.

The testimony of the defendant

There are several issues involved when the police or prosecution reviews social media posts.

• The Fourth Amendment: The posts could violate a defendant’s Fourth Amendment rights to be free from illegal searches and seizures. One question that our criminal defense lawyers review with clients is whether digital evidence is protected and whether making the post private or public affects your Constitutional rights.
• Incrimination: You shouldn’t post anything online (through social media posts, email communications, or other online content) that could be used against you. Even statements, photographs, and videos that you think are harmless could help the prosecution’s case. Your posts could place you in a certain location, show that you had intent to commit a criminal offense, or show that you actually did commit the offense. For example, a picture of you wearing a shirt from a local store could confirm that you committed shoplifting. Generally, any defendant in a criminal case should immediately stop posting online until their case is resolved.
• Identification: A contentious issue is whether law enforcement can use social media posts to help identify who committed a crime and where they live or can be located. At Delius & McKenzie, PLLC, we fight to have the charges against you dismissed if your social media posts were used as a basis for your arrest.

The testimony of the victim and/or witnesses

The use of social media posts is a two-way street. While the police and prosecution may be looking at your posts, experienced defense lawyers may also be looking at the posts of the victim and any witnesses. The statements by the victim and/or any witnesses can help show a defendant’s innocence. They may also help show that the victim or witness is not credible. It can be a strong argument before a jury when a victim’s in-court testimony is not consistent with their social media posts.

What issues are involved in the admissibility of social media posts?

There are many legal issues that must be addressed before allowing a social media post into evidence.

The post must be relevant to the criminal case

It will be up to the judge to decide whether a post is relevant.

Social media posts may not be admissible because they’re hearsay

Generally, any statements or evidence can only be presented by the person who makes the statement. An extrajudicial statement (such as a social media post) offered as evidence (by someone other than you) to prove the truth of a matter at issue is considered to be hearsay. Hearsay evidence is generally inadmissible unless an exception to the hearsay rule applies.

One exception is that admissions against the interest of the person who makes the statement can be admitted. So, for example, if you’re charged with a theft crime and you post a statement on your social media account that you did take something that didn’t belong to you – that statement can be admitted in court by someone who read the post.

The post has to be authentic

If someone posts something to your site in your name that you didn’t authorize, that post should not be admissible. Every social media post has to be verified before it can be introduced.

Social media posts by anyone with an interest in your case can affect your right to a fair trial. Some of the methods courts may use to ensure fairness are sequestering the jury so they can’t read social media commentary online, changing the venue of the trial, or other methods.

The consequences for many crimes in Tennessee include imprisonment and substantial fines. You may have difficulty finding a place to live or a job if you’re convicted. At Delius & McKenzie, PLLC, we’re respected in Sevierville, Gatlinburg, Seymour, and Pigeon Forge for our strong record of success obtaining dismissals, acquittals, and plea bargains for criminal defendants. We understand the unique challenges involved in criminal defense cases, including when and how social media posts may affect your rights and your case.

To speak with an experienced criminal defense lawyer, call us or contact our office today to schedule a free consultation.