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Can Your Facebook Post be Used Against You as Evidence in a Criminal Trial?

Have you ever regretted something you posted to social media? Perhaps you overshared information that should have stayed between you and your spouse. More than one billion people use Facebook every day and almost all of us can point to posting something we wish we could take back. In August of 2013, Derek Medina of South Miami Florida shot and killed his wife. Subsequently, he posted a photo of her body on Facebook along with a captioned confession. Medina turned himself into police and was later found guilty of second degree murder by the jury.

Privacy Settings on Social Media Platforms are No Guarantee

The federal Stored Communications Act (SCA) was enacted in 1986. The SCA dictates whether or not a third party internet service provider (ISP) must hand over electronic communications and records held by them. Social media is a rapidly developing tool, and it likely comes as no surprise that both federal and state laws are playing catchup. In 2010, a federal district court found that the SCA does apply to social media platforms and in 2013, a New Jersey federal district court found that the SCA did protect certain communications on Facebook however, there were exceptions. Essentially, investigators wishing to access non-public information connected to your Facebook account must comply with the SCA. Non-public information may include private messages and posts that were not made “public”. Despite the measures of protection offered by the SCA, there is also a very potent exception outlined in the definition of “public”.

The “authorized user” exception of the SCA provides that information is not protected if accessed by an authorized user. To meet this standard, the authorized user need only be a “friend”. Although a person’s post may not be viewable to the entire public, if a Facebook friend saves the potentially incriminating data and forwards it to the authorities, then this exception may be triggered.

Aside from the federal laws incorporated in the FCA, Florida has taken few steps to incorporate electronically stored data into the rules of discovery. Applicable to civil trials, Florida Civil Procedure Rule 1.280 was amended specifically to authorize the discovery of electronically stored information. Additionally, Rule 1.410 was amended to authorize subpoenas requesting electronically stored information. It is crucial to note that a subpoena is much easier to obtain than an arrest warrant. The Florida Evidence Code remains silent on electronically stored data specifically, but maintains that a sufficient nexus will make evidence sufficiently relevant and thus admissible.

You Can Use Social Media to your Benefit in a Criminal Trial

Although social media can be used against you as evidence, it can also be used to refute a crime that you’ve been charged with. An experienced attorney will help you capture all evidence that will aid in your defense. There is no doubt that the laws surrounding social media use will continue to evolve along with the ever-changing algorithms employed by Facebook, Twitter and many other platforms. It is imperative that you seek legal advice if you thinking a post or message you generated may be vulnerable to criminal investigation. Jeffrey S. Weiner and his expert legal team are dedicated to staying informed on all new laws that may affect your liberties. With over 40 years of experience defending individuals from criminal prosecution in a variety of cases, we can help you.

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