In our last post, we began speaking about the role social media can play in the criminal process, both with respect to criminal investigation and prosecution. As we mentioned, there can be evidentiary issues with the use of social media evidence in criminal cases, such as authentication. By authentication is meant showing that a piece of evidence is what it claims to be. Because of the possibility of tampering with social media evidence, authentication is particularly important for defendants to explore with their defense attorneys when the issue comes up.
Other possible evidentiary issues with social media communications are the use of social media photos to identify a defendant, as well as determining whether social media communications are relevant to material issues in the case, whether social media communications constitute inadmissible hearsay, or whether such communications are unfairly prejudicial toward a defendant.
Another important issue is privacy. At the federal level, various federal statutes limit the use and possession of private data, including social media communications. States have their own privacy laws, both by statute and under common law. Then there are constitutional protections under the First, Fourth, Fifth and Ninth Amendments which can potentially prevent prosecutors from accessing and using social media evidence.
The use of social media communications in criminal prosecution is not always an easy issue to sort out. Those who find themselves as a defendant in a criminal case should at least be aware of the topic and that it is important to discuss such matters with their defense attorney who can help them navigate pitfalls and take advantage of available protections in this area.
