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Can What You Say on Social Media Be Held Against You?

By Timothy Bussey on September 1, 2017

twitter-292994_1920With the recent explosion of social media platforms such as Facebook, Twitter, and Snapchat, the ways in which we communicate with each other, both publicly and privately, are evolving. As is often the case with new technologies, our laws have not necessarily caught up and it’s unclear how to apply them. For example, can what you say on social media be used in a court of law?

A YouTube Confession

A recent case from Ohio, in which a man confessed in video to killing another driver while intoxicated, illustrates the danger of social media. The man was sentenced to six and a half years in prison for aggravated vehicular manslaughter and driving under the influence of alcohol. His YouTube confession, which he did against the advice of his attorney, figured prominently in the case.

Denver Police Under Fire

Here in Colorado, the Denver police department has been accused of using software to monitor residents’ social media posts. The ACLU has condemned the practice, saying it negatively impacts free speech and may violate a 2003 agreement that came in response to previous complaints about law enforcement spying on private citizens who are not suspected of illegal activity.

A Post Online May Be Introduced in Court

A late night status update or a hastily published tweet may leave your mind minutes after it’s posted. Even if you have forgotten about the post, the Internet has not and it may come back to haunt you in a civil or criminal case. If the post can be authenticated to meet the requirements of Colorado Rule of Evidence 901 then it will likely be introduced as Statement Against Interest, a hearsay exception pursuant to Colorado Rule of Evidence 804(b)(3).

To introduce an authenticated post as a “Statement Against Interest” three elements must be established: first, the declarant must be unavailable; second, the statement must be such that it so far tended to subject the declarant to criminal liability that a reasonable man in his position would not have made it unless he believed it to be true; and third, the statement is not admissible if offered to exculpate the accused unless corroborating circumstances clearly indicate its trustworthiness. People v. Lupton, 652 P.2d 1080 (Colo. App. 1982).

Trial courts are given wide discretion in determining the admissibility of evidence, including the admission of statements against penal interest. People v. Stephenson, 56 P.3d 1112 (Colo. App. 2001).

Bottom Line: Just Don’t Post It

As you can see, the issues surrounding social media and law enforcement can be complex. But what there should be no doubt about is that if you are accused of, or even suspected of, a crime, then Colorado police and prosecutors will scour your social media feeds looking for incriminating evidence.

Your Facebook, Twitter, and other accounts can also be used in civil cases such as divorce or personal injury cases. Let’s say that you are a landlord and someone has been injured on your property. They accuse you of failing to maintain a safe environment. If you recently posted a picture of the location, it could be used as evidence to show that you were aware of the problem and did not act promptly to rectify it.

So what can you do to protect yourself? Our social media posts live online indefinitely. Deleting old posts is not enough, as they could be saved on company servers or in screenshots. First of all, it’s important to be careful about what you post online. Even if you think something is in a private forum, the rule of thumb is once it’s online, it will eventually become public. Recent high school graduates learned this the hard way when they had their acceptance to Harvard University rescinded.

If you or a loved one are involved in a legal dispute or have been accused of a crime, it’s essential that you have a legal team on your side that fully understands these issues. The attorneys at The Bussey Law Firm, P.C., have the resources and experience to fully leverage social media to your advantage while protecting you as much as possible. Call (719) 475-2555 to learn about your rights when it comes to social media platforms.

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