We’ve all seen it—spend any amount of time on social media, and you’ll notice millions of people expressing their personal opinions, sharing posts from strangers, and thinking nothing more about it. Many believe that what they post is protected under the First Amendment to the United States Constitution and that they have some level of privacy from being held responsible for their posts. But are you truly protected? Can law enforcement and the District Attorney’s Office use your social media posts against you as evidence in a criminal case or during jury selection? Let’s dive into this and explore the reality of what your posts could potentially create.
Jury Selection and Social Media
Earlier this summer, we were in the process of picking a jury. One of the first things any good Defense Investigator will do is go through the potential jurors’ social media accounts to see their true stance on certain subjects. In this trial, we had a Black male accused of sexual abuse of a child. On face value, these cases are incredibly challenging to defend, so getting the jury right is especially important. Just one wrong juror could mean a guilty verdict based on personal feelings alone. While reviewing the social media accounts of potential jurors, I identified some who had prejudices against Black people and others who believed that anyone accused of a crime is automatically guilty because they trusted law enforcement and the District Attorney’s Office implicitly. From the Defense standpoint, we definitely do not want these people on the jury.
Social Media as Evidence in Criminal Cases
Now, let’s take it one step further. Imagine you are being investigated for a crime, charges have been filed, the indictment is in place, and the State is preparing for trial. How much privacy do you have on social media? The short answer is none. I have never understood why defendants like to “flex” on social media with stacks of money or posing with guns. In a recent case, the prosecutor pulled videos from the defendant’s social media account showing him riding down the road holding a gun and rapping. She was able to spin this short video into evidence of him being a violent criminal, playing the video repeatedly. While distasteful, she was within the law to do this.
The Role of TAG Units
Since the formation of the Texas Anti-Gang (TAG) Units, law enforcement and prosecutors have been combing through social media accounts to identify gang members, associates, and evidence of crimes. This practice has become very common and is a significant part of their investigative process.
What Should You Do?
So, what should you do? It’s rather simple: quit posting on social media. As a defendant, you are just giving law enforcement and the prosecutor a treasure trove of evidence to use against you. You do not have privacy on social media accounts, and thinking that private settings can safeguard you is a misconception. They can easily subpoena your social media account postings and messages. Do yourself a favor and quit posting. They are watching, and your Defense Investigator will appreciate it.
By understanding the implications of your social media activity, you can better protect yourself in legal situations. Remember, what you post online can and will be used against you in a court of law. Stay safe and think before you post.
Can my social media posts really be used as evidence in court? Yes, social media posts can be subpoenaed and used as evidence in criminal cases. Law enforcement and prosecutors often use this information to build their cases.
Isn’t my social media activity protected by the First Amendment? While the First Amendment protects free speech, it does not protect you from the legal consequences of your posts. Anything you post publicly can be used against you in court.
Can private social media posts be accessed by law enforcement? Yes, even private posts can be subpoenaed. Privacy settings do not provide absolute protection from legal scrutiny.
How can social media affect jury selection? Defense investigators and prosecutors use social media to vet potential jurors, looking for biases and prejudices that could impact the trial’s outcome.
What should I do to protect myself on social media if I’m involved in a criminal case?
The best course of action is to stop posting on social media altogether. Anything you post can be used against you, so it’s safer to avoid giving law enforcement and prosecutors any additional evidence.
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