Social Media Used as Evidence

social media used as evidence

Were you charged with a crime? Could your activity on a social media platform be used against you in court?

In 2021, 82% of Americans had social media accounts, which amounts to roughly 223 million people nationwide.

It may not be a surprise that your posts, photos, and messages could be incriminating to your character, but how exactly does social media used as evidence impact the outcome of a criminal case?

If you’re facing criminal charges in North Carolina, reach out to a criminal defense lawyer that will work to get you the best possible outcome for your case.

Can You Use Social Media as Evidence?

Social media platforms are considered public spaces. If a photo, statement, or other activity is posted on a social media page—whether private or public—law enforcement can use it as relevant evidence. They may not even need a warrant to launch a social media investigation and scour your page to collect comments, check-ins, or images that can be used to build their case against you.

Is Social Media Hearsay Evidence?

Hearsay testimony occurs when the witness testifies about what someone else said in an out-of-court statement. This type of testimony is typically not admissible in court since it’s considered unreliable.

A record of social media activity could be admissible as evidence if it:

  • Can be authenticated as being what it implies
  • Can be authenticated as both a photo and a statement (if written statements are present)

So, does social media hold up in court? More and more, the answer is becoming, “Yes.”

Examples of Social Media Used as Evidence in NC Courts

In two recent landmark North Carolina cases, the admission of such evidence significantly impacted the outcome of the cases. These two cases created a precedent for how to authenticate social media evidence in the form of screenshots and how direct messages on social media outlets can be deemed as non-hearsay.

Authenticating Social Media Evidence: Screenshots

During a 2016 appeal, State vs. Ford, the defendant was accused of involuntary manslaughter after his dog attacked the victim. After social media investigations, the prosecution submitted screenshots of Ford’s social media page as evidence. The screenshots contained photos of him with the dog and other incriminating statements regarding the dog’s viciousness.

The defendant argued the screenshots needed to be authenticated with digital evidence like IP addresses and logs from the social media account. The court ruled that the screenshots could be certified based on the “distinctive characteristics” of the social media content and images in the screenshots themselves.

Authenticating Social Media Evidence: Statements

In a 2020 appeal, State v. Clemons, the defendant was accused of violating a domestic violence protective order by using another person’s social media account to send messages to the victim. The victim had screenshots of the conversation sent through the third party’s account.

The defendant argued that the evidence needed to be authenticated in two ways. First, it had to be established as photo evidence—which the victim could accomplish in a statement as the person who took the screenshots. Second, it had to be authenticated as an actual statement made by the defendant to be ruled non-hearsay.

The court ruled that there was sufficient evidence that the defendant did make the statements through the third-party social media account. This ruling was based on circumstantial evidence, like the fact that he had access to the third party’s social media login credentials during the specific times of the posts.

Using Social Media When You’ve Been Charged With a Crime in North Carolina

As these cases make clear, your social media posts could be a liability to you in the courtroom. If you’ve been arrested for a crime, your activity on social media sites—both during the time of the alleged crime and throughout the court process—can be used against you in North Carolina courts.

Social media activity can tag your location and place you at the scene of the crime, create incriminating photo evidence, or capture an impression of your state of mind regarding the charges.

Even if you second-guess your social media post and delete it after the fact, you could face evidence tampering charges if a screenshot or other proof was captured.
It would be best to avoid posting or commenting on social media altogether to avoid giving the state ammunition for building a case against you.

Winston Salem Criminal Defense Lawyers Can Help

Facing criminal charges is worrying enough. When you add that all of your social media activity could be combed through and exposed, it adds another layer of invasion and stress.

Have you been accused of a crime in North Carolina? You need a criminal defense lawyer that can advocate for your rights and use their extensive legal expertise to get you the best possible outcome for your case.

Author Bio

Derek M. Gray

Derek Gray is a Partner of McMinn, Logan & Gray, a North Carolina criminal defense law firm. With more than 15 years of experience in criminal defense, he has zealously represented clients in various legal matters, including DUIs, misdemeanors, felonies, domestic violence, and other criminal charges.

Derek received his Juris Doctor from the North Carolina Central School of Law in 2007 and is a member of the North Carolina State Bar Association. With his experience as a former Assistant District Attorney, he has represented more than 1,000 criminal defense clients in North Carolina and received more than 100 5-star Google ratings.

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