Woman holding her mobile phone.

Is Your Social Media Activity Admissible Evidence in Your Criminal Case?

Social media can have legal implications, particularly when it comes to criminal cases. Since its advent, social media has become a powerful tool for communication and self-expression. As of 2023, an estimated 4.9 billion people worldwide use social media platforms such as Facebook and Instagram to share thoughts, experiences, and moments from their lives. However, in this digital age, social media activity can be used as evidence in criminal cases in Minneapolis and elsewhere.

Woman holding her mobile phone.

Posts made to social media played a role in the arrest and charges against a 21-year-old man in Savage. A confidential source exchanged messages with the man on social media, in which he allegedly claimed to be preparing for a violent interaction with law enforcement. The man was charged and pleaded guilty to charges, including illegal possession of a machine gun. 

After an arrest, or if you are under investigation by law enforcement, call Max Keller Criminal Defense Attorneys to discuss your case and the implications of your online presence. 952-913-1421.

Are There Laws Regarding Digital Evidence in Criminal Cases?

There are no overarching federal or state laws regarding digital evidence in criminal cases. However, a mix of federal regulations and state-specific statutes do provide a legal framework for the use of evidence from online sources. The federal rulings and agency guidelines focus on ensuring such evidence is gathered and handled properly. State laws often address issues such as search warrant requirements and proper handling procedures for electronic data. 

Admissibility Criteria for Digital Evidence

To be admissible in court, digital evidence must meet criteria. For the court to consider evidence from social media platforms, it must have authenticity, reliability, and relevance. Not meeting the criteria may lead to a situation when evidence can be found inadmissible

State and federal laws require digital content to be authenticated before it can be admitted as evidence. To this end, it must be established that the social media account or the content was created by the person in question. 

For digital evidence to be admissible, its reliability must also be established. As such, the proper procedures must be followed in the collection, preservation, and analysis of social media content.

Digital evidence must be directly related to have relevancy to the case. As such, the content, activity, or social media platform data must be directly related to, and have a bearing on, the facts and issues of the case. In the case of the man from Savage, the messages he allegedly exchanged with a confidential informant discussed how he trained in a helmet to mimic how he would be dressed if in combat. 

How Social Media Can Provide Evidence of Motive or Intent

Motive and intent commonly play a role for the prosecution and the defense in criminal cases. Many candidly share personal details, opinions, and experiences via their social media accounts. Sometimes, they may do so without fully realizing the implications. Therefore, it’s important to understand what types of evidence can be used against you.

Social Media Posts and Messages as Direct Evidence

Due to the nature of how they are used, social media platforms have become a rich source of evidence to offer insight into someone’s actions, thoughts, and emotions leading up to or after an alleged crime. The authorities may use confessions or incriminating statements made on social media platforms to prove guilt or involvement in a crime.

When made via social media, admissions about planned criminal activity, expressions of intent, and threats can also contribute to motive and intent. Such was the case regarding the messages exchanged between a confidential informant and the 21-year-old Savage man. In addition to allegedly discussing his training tactics and purpose, he also purportedly touted himself as pro-mass shooting and sympathized with a school shooter. Ultimately, he was arrested and charged for illegal possession of auto sears, which convert semi-automatic weapons into machine guns, and the attempted possession of hand grenades.

Social Media Activity as Circumstantial Evidence

Social media activity contributes circumstantial evidence in criminal cases. Connections and interactions on these platforms can be used to establish associations or relationships between people involved in a case. For example, frequent messages exchanged between co-defendants could point to collaboration or shared involvement in a crime. Data from social media, such as location information, metadata, and timestamps, may aid in corroborating or contradicting the timelines and alibis related to a crime.

Types of Social Media Evidence in Criminal Cases

People share personal details, thoughts, and experiences via social media, leaving behind a data trail that can offer valuable evidence in criminal cases. Further, many users have accounts on more than one platform. The average user has accounts across six to seven content-sharing and social-networking sites. 

The types of social media evidence that may be relevant to the prosecution or defense’s cases can vary. It may include text-based content like posts or private messages, multimedia elements such as photos and live streams, and metadata associated with the user’s account information, activity, and online interactions. 

Text-Based Evidence

Posts, comments, and messages shared on social media platforms can be used as evidence in criminal cases. Such digital content may reveal incriminating statements, admissions, or discussions related to an alleged crime. The authorities or felony defense lawyers may include public posts visible to all, as well as comments on others’ posts, as evidence.

Direct Messages and Private Conversations

Direct messages and private conversations on social media can also be obtained for use as evidence. For example, private conversations between himself and a confidential informant were reportedly part of the case against the man in Savage. 

Multimedia Evidence

Multimedia evidence, including photos, videos, live streams, and stories or reels can be instrumental in criminal cases. They may provide visual context before or after the alleged crime, show individuals involved in criminal activities, or depict an actual crime taking place. 

Challenges in Admitting Social Media Evidence

The unique characteristics of social media evidence presents distinct challenges for its admission and use in criminal cases. When admitting digital content, the court must balance upholding the rights of the accused, preserving the integrity of the judicial process, and taking advantage of the valuable information available on social media platforms.

Authentication and Verification Issues

Establishing ownership and authorship of social media accounts and content can be difficult. Accounts may be hacked, shared, or impersonated, which may create challenges in proving a person created or controlled an account or post. 

Manipulation or fabrication of digital evidence has also raised concerns about its authenticity and reliability. Photos, videos, and even text can be edited, altered, and taken out of context. The prosecution or criminal defense lawyer may call on digital forensics experts to analyze the evidence to verify its integrity. Further, the authorities must maintain a clear, documented chain of custody for digital content, just like other types of evidence.

Privacy and Fourth Amendment Considerations

When it comes to certain types of social media content, such as private messages or posts shared with a limited audience, people may have a reasonable expectation of privacy. Such content must be obtained using the proper procedures, including search warrants or court orders, or it may violate the account holder’s constitutional rights. Consequently, the court may deem it inadmissible, or it may be suppressed. 

Should law enforcement not follow proper protocols in obtaining social media evidence, it may lead the defense to consider what is the exclusionary rule in a criminal case? Through this rule, defendants may challenge evidence gathered in violation of their constitutional rights.

Best Practices for Handling Social Media Evidence

As social media evidence is more widely used in criminal cases, it’s essential for law enforcement and legal professionals to follow established best practices to ensure the integrity and ethical use of such evidence. For example, the authorities and attorneys involved should get a search warrant, if needed, and maintain the proper chain of custody. Further, forensic imaging and data extraction techniques should be applied to help guarantee its authenticity.

In securing or using social media evidence, such as that used in the case against the man in Savage, prosecution and defense lawyers must take care to avoid unethical tactics or privacy violations. To help ensure the admissibility of the evidence, they should take care to respect the rights of the accused and adhere to the ethical guidelines.

A criminal defense lawyer will carefully evaluate the relevance, reliability, and prejudicial impact of any social media evidence presented against a client. They may challenge its admissibility, or provide alternative explanations to explain its context or otherwise mitigate its impact on the case.

If you’ve been charged with a crime or are under investigation, it’s important to understand the implications of what you post online. Contact us today to learn more.

Max Keller has won countless jury trial cases involving misdemeanors and felonies, sex crimes, and DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. Max is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

Years of Experience: Approx. 20 years
Minnesota Registration Status: Active
Bar & Court Admissions: State of Minnesota Minnesota State Court Minnesota Federal Court 8th Circuit Federal Court of Appeals State of Maryland

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