Using Social Media as Evidence in Court

Wednesday, February 15, 2012

Leonardo Angiulo, GoLocalWorcester Legal Contributor

Leonardo Angiulo, GoLocalWorcester Legal Contributor

People are constantly walking into my office with manila folders stuffed full of paper. Nine times out of ten, it’s printouts from Facebook, texts from a phone and emails. And my clients say things like, “The DA’s gotta drop the case, my ex has been texting about how she was going to make stuff up to get me in trouble forever.” Other times clients say things like, “The judge is definitely going to give me custody, my kid’s father has been posting all kinds of crazy stuff about getting drunk/high/even with me.”

And you know what, lots of times these manila folders contain total gold. These situations drive home the point that sometimes people say things electronically because they really feel it and just have to say it. There are, however, two things I want readers to take away from this column: a) be careful because electronic statements stick around for a really, really long time; and b) no matter how good a single piece of evidence is, it’s only one part of a bigger picture that takes time to develop.

There is a direct connection between your brain and your thumbs. Thanks to modern technology there is also a connection between your brain and the internet. Depending on the situation, that might not be a good thing. For example, a person coming home after a long night of partying might update their facebook status before bed. They go to a club and take a quick photo for a post. They get drunk and send a text they shouldn’t have. They get high and send an email. Sometimes people send emails or texts that contain all kinds of emotion without being intoxicated at all. None of these are particularly good ideas. In an analog world it’s a little bit like getting wasted, grabbing a video camera, spilling your emotions and then playing the tape on the local TV station.

Unfortunately, in the digital age, people will do these things and not think about the legal consequences. The reality is that as soon as you become involved in a court case, the decisions you make and have made in your life are scrutinized. If you are a criminal defendant, the court has the authority to set conditions of release when you are bailed out. As an example, you can be told to have no contact with particular individuals. Emails, phone calls and texts all count as contact. You can have your bail revoked for any of those. If there is a question about whether you are a fit father, posting pictures of yourself taking bong rips will not convince a judge you are maintaining sobriety no matter how many times you tell him you are.

As I mentioned before, electronic communications last for a really long time and you have zero control over who holds the information. There’s your records on your computer or smartphone, the records of the internet or phone provider, the database maintained by your chosen social media, and then there’s all those people out in the world that receive transmissions from you. Both Attorneys and Prosecutors can get subpoenas for records. Anyone out there can print out and keep hard copies in their desk drawer for the right time. Sometimes I read a post or an email and wonder why a person felt the universe needed to know what they were thinking. Okay, so you guys broke up. I promise you, Mark Zuckerberg does not have the capacity to walk you through this so don’t post about it. Don’t email about what is going to happen if she doesn’t come back to you. If you need counseling there are trained professionals who can help you. They are great at what they do.

Lets skip to the part where you’re ex is an idiot, posts with the frequency of a teenager, and claims that you hit him during an argument over rent. Just because we have a record that he tweeted about “evicting made ez w/ the 5-0” @DB1982 doesn’t mean the DA is going to drop the case. What it does mean is that when he takes the stand at your trial we throw these statements in his face during cross-examination. One of the basic instructions in every criminal trial is that the jury has the final say on who is believable or not. In this hypothetical, why should a jury believe that this guy got smacked like he says when two hours later he’s laughing about how he got his girlfriend out of the apartment using the police?

We as residents of the Commonwealth have the right to a jury trial. Preparing for and getting through trial takes a lot of work and can be a stressful time in a person’s life. It isn’t the easiest way for the truth to come out but it definitely works. It’s also the way afforded to us by the Federal and State Constitutions. With that in mind, before you go texting about how you’re stopping by to KO some girl’s new boyfriend just take a minute to think it over.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected] or through the firm's website at www.gskandglaw.com