As the prevalence of social media grows in society so does the impact of social media on the courtroom. There have been a series of highly publicized cases of social media's impact on the courtroom including attorneys and judges making inappropriate posts resulting in sanctions. Of more concern for many, is the result of defendants posting images and messages on social media which are later used against them. Many people who use social media are posting with the intent to share with friends who they have specifically selected – very few people are likely thinking of the long term and potentially legal ramifications of their actions. However, given the examples below which are just a handful of the cases, there is clearly a trend towards prosecutors and their investigators looking to social media to bolster or in some cases prove their cases.
In a case out of New York, 63 alleged gang members were indicted with at least some of the evidence coming from social media. In charging documents, the investigators cited to evidence obtained from social media including Facebook, Twitter, and YouTube. Some of the defendants who were convicted felons posted images of themselves with various guns which they could not legally have. Other posts are alleged to be threats or challenges between gangs. It even appears that some of the defendants acknowledged being part of shoot outs on their social media pages.
While the first case cited is definitely on the larger scale involving dozens of defendants being indicted in federal court, there is also an increase in prosecutors using social media in state felony and misdemeanor cases. For example, in a 2013 case out of California a young man originally charged with vehicular homicide had the charges amended to murder after the prosecutors viewed his Twitter feed were he allegedly bragged about his reckless driving. The prosecutor's office cited this as evidence demonstrating a history of reckless driving which meant the defendant was aware of the risk to others. In the eyes of the prosecutor's office, this raised the culpability of the defendant.
In another reckless driving case, the prosecution presented evidence from a defendant's Facebook page at sentencing in the hopes of refuting some of the defendant's statements regarding his remorse for his actions. While the judge ultimately declined to look at the material, the fact that it was presented in sentencing is troublesome for a number of reasons. Perhaps of greatest concern is the inherent unreliability of information posted on the internet and social media; if that information is allowed to be presented unchallenged at sentencing then certainly there should be some concern.
Despite these concerns, the courts have been consistent in upholding the government's ability to access and use information from social media – even when that information is supposed to be protected by privacy settings. Melvin Colon learned this lesson the hard way. Mr. Colon used his Facebook account to post messages and images of himself to his friends. He apparently was aware of the risk of posting some of the messages, including those that purported to show him flashing gang signs and making menacing messages to rivals gangs, so he limited the people who could view these posts to his “friends”. Unfortunately for him, one of his “friends” became a witness for the state at which time the F.B.I. investigators were able to gain access to all of the information he had posted to Facebook. No warrant was necessary to view the voluminous amount of information that had been posted. Mr. Colon's defense attorneys fought to keep the information out under the idea that Mr. Colon should have had a reasonable expectation of privacy especially given the steps he took to keep the information private. U.S. District Court Judge William Pauley III disagreed. The evidence was permitted based on the judges determination that “Colon's legitimate expectation of privacy ended when he disseminated posts to his ‘friends,' because those ‘friends' were free to use the information however they wanted—including sharing it with the Government.” Judge Pauley III compared Facebook posts to handwritten letters in which a defendant loses all expectation of privacy once the letter is delivered.
In short, information posted to social media, regardless of attempts to keep the information private, will likely be considered fair game for use in charging crimes, during court or at sentencing. Even without search warrants government agencies are obtaining information that defendant's think is private and using it against them in a court of law. The importance of being conservative in social media posts is more important now than ever and users should proceed with extreme caution.