Can My Social Media Be Used As Evidence?
Yes, in many cases, your social media posts can be used as evidence against you in a criminal case. However, there are ways to protect yourself. Limiting what you post could prevent the prosecutor from finding incriminating content.
Always remember that the prosecutor must prove every element of your crime beyond a reasonable doubt. They will try to use social media posts to prove those elements.
What Does PA Law Say About Using Social Media in a Criminal Case?
Pennsylvania laws do not specifically address using social media in a criminal case. However, some relevant federal and state statutes about electronic data have been used to decide case law on the issue.
What Is Case Law?
Case law is a type of law established through court rulings. When a court decides a case, other courts may follow that decision in similar cases in some situations.
Commonwealth v. Mangel
In a 2018 case called Commonwealth v. Mangel (2018 Pa. Super. 57), the defendant was charged with aggravated assault. The victim said they could identify the defendant through Facebook pictures. The trial court allowed the prosecutor to obtain the defendant’s Facebook records, including screenshots of pictures of the defendant.
In one picture, the defendant had bloody hands. The court allowed the prosecution to get pictures, posts, and “chat” messages from the defendant’s social media.
Court Orders May Require Social Media Companies to Disclose Information
In the Mangel case, the prosecutor relied on two statutes to obtain this information. The first was 18 U.S.C. §2307(c), which requires the disclosure of customer communications or records in certain situations.
Specifically, with a court order, the prosecution may order Facebook or any other social media company to disclose a record of information about the subscriber or customer, including the contents of communications.
Prosecutors Must Have Reasonable Grounds
The prosecution in Mangel’s case also used 18 Pa.C.S.A. §5743(c) and (d), similar to federal law. The Pennsylvania code also states that to obtain a court order to get social media records, there must be “reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”
Thus, federal and state laws allow police investigators and prosecutors to obtain social media posts and other data in a criminal case.
How Does the Prosecution Use Social Media Against a Defendant?
The prosecution may use social media in two ways: to prove elements of a crime or as character evidence against a defendant.
Using Social Media to Prove Elements of a Crime
To be convicted of a crime, the prosecution must prove every element beyond a reasonable doubt. Social media may be used as a source of information or evidence to support those elements of the crime.
For example, if the prosecution charges you with theft by unlawful taking, they must prove the following elements:
- You unlawfully took, transferred, or exercised control over
- Another person’s movable or immovable property
- With the intent of depriving the owner of their property or using it to benefit yourself or another who is not entitled to it
Let’s focus on one element – depriving the owner of their property. You must intend to keep that property away from the rightful owner permanently. If your true intent is to borrow and return it, you cannot be found guilty of theft.
A prosecutor may find a photograph of you on social media with the property that was allegedly stolen. This may be evidence that you unlawfully exercised control over another person’s property.
Then, the prosecutor may look at your social media chat messages and find a conversation about how you intend to use the property in the future. This may prove that you intended to use the property to benefit yourself and not return it to the proper owner.
The prosecution will use information you post publicly and private conversations as evidence against you.
Using Social Media as Character Evidence Against a Defendant
While prosecutors aren’t generally allowed to present character evidence against a defendant, there are situations where it is permitted. For example, suppose the defendant first introduces that they have a reputation for being honest. In that case, the defendant has “opened the door” for the prosecution to present evidence to the contrary.
The prosecution may find posts on your social media accounts about fraudulent activities. Those posts may be from years ago and may not even seem relevant. However, if the court allows the prosecution to use this evidence, it can be detrimental to your case.
What Kinds of Posts Hurt Your Criminal Case?
Federal and state laws require social media companies to provide a wide range of information to investigators and the prosecutor if adequately requested. Even if your social media accounts are restricted to “friends only” or private, the prosecutor can likely get information that may be relevant to your case.
Courts have ruled that prosecutors can obtain data from social media posts, pictures, and messages. Thus, it seems that any actions taken on social media may be used against you in a criminal case.
How to Prevent Prosecutors from Using Your Posts Against You
The best way to prevent the prosecution from using your social media posts against you is to be very careful about your posts. If you are involved in any activities that could be considered questionable or illegal, you should never post about them – even jokingly.
You should also be careful about who you associate with on social media. Your constant interaction with known gang members or drug dealers may make you a target to investigators.
Never joke about illegal activity. You might think that casual use of marijuana is not a big deal, but if you are caught with a significant amount of drugs, that funny post may be used against you in court.
Don’t have conversations on social media public posts, or private messenger services about your illegal activities. The prosecution can get access to these conversations, and they will use them against you.
Call A Criminal Defense Attorney About Your Case
If you have specific questions about your case, you should immediately contact a criminal defense lawyer for answers. The experienced attorneys at Worgul, Sarna & Ness, Criminal Defense Attorneys, LLC have helped countless people facing difficult situations. Call us today at (412) 281-2146 or contact us online to discuss how we can help you.