In this age of high technology, text messages, cell phone records, cell phone photos, tweets and Facebook and MySpace information are a part of our everyday lives that document our friends, likes, dislikes and whereabouts for the world to see. What has become America’s fascination is increasingly creeping into the courtrooms across the country as criminal evidence. Whether it is used as evidence to bolster the accusations against you or during sentencing, the use of social media communications in our digital world is creating an entire new body of evidence that can possibly be used against you in a criminal case, subject to procedural rules and laws regarding admissibility.
Since most people are not thinking about creating evidence when they are texting, saving photos or sending messages on Facebook or MySpace and tweeting, there is a treasure trove of unfiltered evidence out there for lawyers handling criminal cases on both sides of the docket. However, serious problems can arise when social media evidence is the crux of the State’s case against you or used to bolster other evidence being offered in the case against you. With anyone being able to create an account purporting to be someone else, establishing profiles, adding photos, sending messages, or even stealing a username and password, the potential for fraud is significant.
For example, the simple existence of an email allegedly from an individual’s email address, a text message allegedly from the cell phone of its purported author or a printed document allegedly from an individual’s Facebook or MySpace accounts, without more is generally regarded as inadmissible on the basis that they cannot be sufficiently authenticated, as required by Michigan evidentiary rules. Many other states impose similar authentication requirements.
Furthermore, when social media evidence is being offered for its truth, such as the conduct of the defendant in case, it may be inadmissible on the basis of hearsay. Hearsay evidence is generally inadmissible because it is inherently unreliable, and the credibility of the person making the statement cannot be cross-examined, unless it can be shown that it falls within one of the narrow exceptions to the hearsay rules.
Just recently, an alleged stalking case against my client was dismissed by Judge Randy Kalmbach, who presides over the 27th District Court in Wyandotte. The State’s case was based on evidence indicating that Petkov had posted negative information about her ex-husband’s girlfriend on highly popular social media websites such as Facebook and YouTube, in addition to driving through her neighborhood and past her house. Following a Motion to Dismiss, the case was dismissed by the court because prosecutors were unable to prove the social media postings were in fact from my Client.
Scott Weinberg is a Michigan criminal defense lawyer who has been practicing criminal law for over twenty years, also having experience as a prosecutor. His entire practice is devoted to solely to the practice of criminal law and his skill as a trial attorney allows him to understand when incriminating social media communication evidence being offered against you is inadmissible, or subject to limitations.
Contact us to schedule your confidential, no obligation initial consultation to sit down, discuss the particulars of your case and advise you of the options available to you. While some lawyers want their entire fee up front for representing you, our firm will work with you to see if you qualify for financing or some type of graduated payment plan to enable you to have the best criminal defense possible given any budgetary restraints you might have.
