The implementation of social media by prosecutors and police to investigate and prosecute criminal activity has seen a marked increase in recent years. Because relatively few legal restrictions on the use of such media exist for them, it’s an easy access point. Social media—including posts in places like Instagram and Facebook, texts, and emails, can provide a range of potential evidence that can be used by police and prosecutors to build a case against any given suspect. Social justice advocates and others, though, have concerns that vulnerable fragments of society are being marginalized and stigmatized when social media is used in this way. Public defenders, as well, have grievances related to their disadvantage when having access to certain social media.
How is Social Media Impacting Investigations?
There are several ways in which law enforcement can use social media during a criminal investigation:
- Determining the location of a suspect through geo-tagging;
- Monitoring posts for evidence of criminal associations or activities;
- Interfacing with suspects using undercover profiles;
- Influencing the direction an investigation takes.
Additionally, since many law enforcement agencies have their own public social media sites these days, they can paint a picture of who they believe is involved in crime, which often fortifies stereotypes. One study, in fact, found that although Blacks made up just 20% of those arrested for those crimes, they were called out in about one-third of posts related to crime.
Using it as Evidence in the Courtroom
When prosecutors introduce evidence from social media, it can be very damaging to defendants. Many assume that social media accurately reflects an individual’s reality, even though we know that a lot of bravado and swagger goes into posting, as people attempt to impress various audiences. Without question, the social norms dictating behavior in various communities could easily be misinterpreted, leading to suspicion and negative conclusions directed at young Black men and others. This has been a consistent concern in gang cases and in cases related to sexual violence.
Unequal Access
Much of this type of evidence is protected by privacy laws from non-government agencies, which are therefore barred from accessing it. Instead of getting the cooperation given to law enforcement in so many of these cases, defense attorneys find themselves struggling to get social media companies to share information. Even when they do get access, it is often very limited, making it much less useful in court.
Defendants Should Avoid Social Media
After being charged with a crime, defendants are encouraged to stay away from social media because it will likely be monitored by opposing counsel. Anything prosecutors get their hands on could later be presented in a negative light. Best for unwitting defendants to avoid giving prosecutors ammunition to use against them in court.
The Defense You Deserve
No matter the case or the evidence against you, the dedicated criminal defense attorneys at Boertje & Associates in San Diego always fight for the best possible outcomes for you. To discuss this, schedule a confidential consultation today.