Social Media During Trial.

Social-media evidence can take many different forms, ranging from public posts and private direct messages to photos, videos, tags, check-ins, group memberships, and even search histories. When the rules of admissibility, authentication, and fair trial are met, this evidence can support either the prosecution or the defense.

• If the prosecution is trying to prove that a defendant is guilty, then a social-media post may be highly relevant for proving identity, motive, intent, timeline, location, state of mind, or any number of other facts that might support the government’s case.
• On the flip side, if the defense is trying to prove that the defendant is not guilty, then, for example, a video of a defendant engaging in a normal day’s activities may be highly relevant to proving that he was not, in fact, committing a federal crime on a certain day.
• Social-media content can also be highly relevant when it is used to challenge a witness’s account of events or their credibility. For example, if a witness claims not to have known a defendant prior to the alleged criminal conduct, their Instagram posts tagging the defendant in photos together several years prior can be used to impeach that witness’s credibility.
• Geotagged posts and live videos can be highly relevant when they support or contradict a defendant’s alibi. In these scenarios, if a defendant’s alibi is a social-media check-in or a live video, this evidence can be used to either support his account or, if it can be shown that the check-in was spoofed or posted retroactively, to prove a contrary account. Social-media evidence may also be used to support or contradict other witness testimony.
• All of these are just examples of the types of relevant social-media evidence that can be used during a criminal trial.

How do warrants, subpoenas, and voluntary disclosures reach private content?

While a fair amount of content posted on social media is private, a substantial amount is public. Generally, prosecutors do not need to present warrants to review and use public social-media content in a federal criminal case. However, to obtain access to private content, such as private messages sent to other users, posts to private groups, and stored account information, prosecutors and agents may seek to obtain a warrant or other legal process authorized for the particular content that imposes legal obligations on the provider or the user to disclose the content.

• When law enforcement or prosecutors seek a warrant to obtain social-media evidence, the provider may be required to disclose the stored content, subject to the SCA’s requirements and exceptions. But the ability of these providers to disclose such content may be restricted by the Stored Communications Act, or “SCA,” a statute that outlines both the circumstances in which they may generally share content and the requirements that must be met for specific types of disclosures.
• Along with warrants, subpoenas, court orders, or any other form of legal request, prosecutors can obtain access to private content with the voluntary cooperation of account owners and other third parties. For example, if a defendant’s account is private, this is a non-issue if the recipient of a private message or photo voluntarily screenshots the image and discloses it to law enforcement.
• While there are specific rules governing the ability of prosecutors to seek and use social-media evidence in federal criminal cases, our research does not establish that they must obtain warrants in all cases. Again, this depends heavily on whether the content is stored by a provider, public, private, or obtained via a third party.

Which social-media content can survive authentication and admissibility challenges?

Authentication is the process of linking a particular account, device, or piece of content to the person who allegedly created it or authorized its use. While account ownership can be strong evidence of authorship, it is not conclusively sufficient on its own. For example, shared passwords can lead to different users posting to the same account, and hacked accounts can lead to posts that are not created by the account owner. When establishing authentication, prosecutors and defense attorneys may rely on:

• Subscriber records
• Devices
• IP addresses
• Context, such as posts referring to unique experiences
• Witness testimony The admissibility and authentication of social-media evidence in federal criminal cases also involve Federal Rules of Evidence (FRE) 401, 402, 403, 901, and 902. Here is a brief overview of what these rules address:
• Federal Rules 401 and 402 (Relevance and Admissibility): Federal Rule 401 defines “relevant evidence”, which refers to any evidence that tends to prove or disprove any fact that has a bearing on the legal outcome. Federal Rule 402 establishes that relevant evidence is generally admissible.
• Federal Rule 403 (Exclusion of Unfairly Prejudicial Evidence): Along with relevance, other factors can lead to exclusion of social-media evidence during trial. Under Federal Rule 403, a judge can exclude relevant evidence if its probative value, the evidence’s ability to prove the proposition in question, is substantially outweighed by the potential for unfair prejudice. A judge may find that certain evidence is unfairly prejudicial if it is likely to provoke jurors to conclude that it is more important than it actually is, confuse the issue at hand, or lead to unfounded conclusions based on bias.
• Federal Rules 901 and 902 (Authentication): Federal Rule 901 establishes the general requirement for authentication. While Federal Rule 901 requires authentication in most cases, Federal Rule 902 provides for certain forms of “self-authenticating” documents. These include certain certified records and copies of electronic records. For social-media evidence to be admissible in court, the prosecution (or the defense) must prove that it is relevant, authenticate it, and demonstrate that it’s not excluded by any other means, all while satisfying other grounds that may require exclusion, such as privileges or evidentiary standards.

How can screenshots, downloads, and forensic captures preserve usable evidence?

While screenshots are one form of social-media preservation, they can often fail to adequately document sufficient evidence for courtroom use. Depending on the scope of litigation, they may fail to preserve metadata, source code, the content’s surrounding context, later additions to the content, or evidence that a screenshot was edited or otherwise altered prior to its use in court.

Beyond taking screenshots, legal professionals have a number of ways to preserve social-media evidence for use in court. Common methods include:

• Taking screenshots
• Creating printed copies
• Downloading the social-media evidence
• Using specialized forensic capture software

While a simple screenshot is often insufficient, a printed copy of social-media evidence is acceptable if it includes all relevant information such as the site’s header and footer, a timestamp for when it was printed, and the site address. The same is true for downloads, which also should include this type of information to meet authentication standards.

Basic capture tools typically fail to preserve active content, like video, in addition to the content’s source code. For this reason, in complex litigation, attorneys often prefer advanced forensic capture tools like PageFreezer or Archive Social. These programs not only preserve social-media content but may also assist the proponent in authenticating it for evidentiary use.

While preserving evidence is necessary for the prosecution, defendants must also take care to ensure they preserve relevant social-media content. Once litigation is foreseeable, a party’s intentional or negligent failure to preserve relevant social-media content may establish liability for spoliation. This can lead to sanctions, adverse jury instructions, or even pre-trial discovery penalties.

Whether you need help deciding which social-media evidence to present at trial, or you need to help preserving relevant evidence for future use, we can help. Our defense attorneys at Spodek Law Group can help preserve legal rights in federal criminal cases involving social-media evidence.

When do juror posts and attorney searches create trial problems?

The legality of attorneys reviewing prospective jurors’ social-media profiles depends on the specific circumstances involved. While lawyers can generally review information that prospective jurors make public online, they may not use deceptive or otherwise unlawful means to obtain restricted content.

Once the trial has begun, jurors’ social-media posting habits can cause significant issues. Not only does social-media use during trial proceedings potentially trigger misconduct claims and new-trial arguments, but it can also undermine a juror’s ability to remain focused and impartial. In one Arkansas case, the court reversed the defendant’s conviction and death sentence and held that a juror’s tweeting during the trial constituted juror misconduct. When jurors post about an ongoing trial, or fail to observe restrictions on their own social-media use, attorneys can (and should) seek a prompt judicial remedy to prevent prejudice in cases ranging from criminal trials and sentencing to civil litigation involving government agencies.

If You Want Someone to Look at Your Case

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