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Can what you say on social media be held against you in court?

On Behalf of | Jun 3, 2024 | Criminal Defense

If you’re like most people, your social media presence reflects your interests and maybe your professional work. As such, it’s important to know that even if you use strong privacy settings, anything you post can potentially be found by those who know how to look for it.

Further, even if you delete a post – whether immediately or later if it becomes problematic (or you fear it will), it never really goes away. That particular “digital footprint” is still there – even if someone didn’t take a screenshot of it while it was up.

So, what does that mean if you’re involved in a court proceeding? Whether you’ve been charged with a crime, are facing a lawsuit or are fighting to gain more parenting time with your child, can your social media posts be used as evidence against you? In general, they can – or you should at least assume that they can before you post.

How does this reality fit into the protections afforded by the Fourth Amendment?

Since the Internet was centuries away from being created when the Fourth Amendment of the U.S. Constitution was written, courts have had to determine whether accessing posts that aren’t viewable to the public without a warrant is a violation of the protection against unreasonable searches, which means they would be inadmissible as evidence. Typically, law enforcement needs a warrant to get non-public activity. Even if digital activity is obtained using a warrant, prosecutors would still need to show that it’s relevant to the case to use it as evidence in a criminal proceeding.

You don’t have to create a post yourself for it to be used against you. If you share or even “like” a post. that could potentially be used as evidence. So could the groups or people you follow. These things alone aren’t enough to prove anything, but they can help prosecutors strengthen their case.

Of course, prosecutors need to verify that any social media data they use is authentic and that you were the one behind such activity. You could be the victim of a hacker, or someone else with access to your login credentials could be behind specific actions. Those are among the questions that could be enough to create reasonable doubt for a jury. With experienced legal guidance, your social media presence doesn’t necessarily have to harm your case.