In 2016, I wrote a column warning people about their use of social media, like Facebook, Twitter and Instagram.
At the time, lawyers were using these social media outlets in their cases. The same can be said for today. However, the amount of “Facebook evidence” – including all social media – has grown like a wildfire.
Today, social media can significantly affect a person’s liberty, children and financial well-being.
Criminal cases – Since Part I, I have seen some of the most damaging Facebook evidence in my life. It continues.
Clients bring in phrases of key witnesses contradicting their police interviews on their homepage. Prosecutors show me pictures of a client in poses that would not help if seen by a jury.
For example, it’s difficult to explain in words why a defendant is covered with gang tattoos,
using gang signs, wearing red and holding two automatic weapons with six other alleged gang members when the projector in the courtroom shows a 12’x12’ Facebook post of that picture.
It’s also difficult to deny threatening someone when a person’s Facebook post says something along the lines of “Bob, I am going to kill you when I get over there in a few minutes you -------- -- ------------ -----------. Gonna send you straight to ----------.”
In trials, all the words are used.
Civil cases – “Facebook evidence” settles a lot of civil cases; particularly divorce and custody proceedings.
Affairs, dishonest statements, drug/alcohol abuse and child neglect are just a few
of the things domestic attorneys have both as weapons and massive problems.
Sometimes, Facebook evidence affects both areas of the law. For example, criminal cases are referred by family law attorneys when their divorce clients are charged with crimes such as family violence battery, cruelty to children, disorderly conduct and more serious offenses associated with the family. Facebook posts in civil cases oftentimes affects the outcome in companion criminal cases.
Imagine that a wife’s friend sees the husband at a bar. Her friend is going through a divorce with him. The husband is also the father of three children. He has “been at it” for quite some time at the bar. The friend pulls out her phone, takes a picture of him knocking back a shot of whisky while friends are cheering him along just before he attempts to drive home. When he is arrested for DUI that night, the screenshot the friend will give to the
wife will probably be the most powerful piece of evidence in both the divorce/child custody dispute and the DUI prosecution.
Social media use – Based on my experiences with the power of Facebook evidence, my
strong advice to clients has changed as provided below. (In extreme cases, all social media needs to be shut down).
While some of these principles are strict and litigation based, the reasoning for
them are good for all of us to keep in mind.
1. Never post anything about a pending case or a situation that is about to evolve into arrest warrants or a civil lawsuit. This is true for defendants, plaintiffs, witnesses and anyone who could possibly be a witness;
2. Never threaten, harass or otherwise become overly aggressive with someone else on social media. There is nothing wrong with being a gentleman or a lady;
3. Never reveal personal feelings about someone who is involved in a case. Your feelings can be used against you when being cross-examined in court by exposing bias, anger, love, motive, etc.;
4. Never post a picture, or allow others to do so, that you would not want people in a courtroom to see;
5. Never reply to an adverse witness, the opposing party or anyone else involved in the case unless your lawyer approves. Most of the time, silence will bring forth more information for you than arguing.
6. Always legally and ethically collect Facebook evidence that can help your case; and
7. Never criticize the lawyers, counselors or the judge. Yes, I have seen someone actually post some not so complimentary things about the judge hearing the case.
Facebook is quickly becoming one of the primary ways to prove or disprove a case in court.
The use of social media in a courtroom is now widespread and gathering more steam as time goes on.
Jason Swindle is a criminal-defense attorney and college professor in Carrollton.