If you have a civil or criminal case pending in SC courts, your social media posts, pictures, and comments might come back to haunt you… Your Facebook, Twitter, or other social media account may be filled with happy photographs of family, vacations, and day-to-day events that you wanted to share with family and friends, but it may also be filled with photos and comments that can be used against you in court.
You may share your feelings on social media about current events, people, politics, and even your thoughts on your pending case. If you are a plaintiff in a civil case or a claimant in a workers’ compensation case, there may be photos of you engaging in activities that could be used as evidence that your damages are not as bad as you say they are. Will the prosecutor or the insurance defense attorney on the other side of your case see your social media posts? There’s a good chance that they will. If they do, is the social media evidence admissible in your case?
How and when is social media evidence admissible against you? How can you protect your social media accounts from being accessed and used by the other side in your criminal or civil case?
Is Social Media Evidence Admissible in SC Courts?
Content from your social media accounts is admissible in SC courtrooms if it is relevant to the claims or defenses in the case and if it can be authenticated by the other side (if they can prove that it was your account, your words, and your photographs).
Is Social Media Admissible or is it Hearsay?
Whether it is a criminal case or a civil lawsuit, statements that you have made are not hearsay if they are “admissions of a party opponent,” and are admissible as evidence against you if they are relevant. They can also be used to “impeach” you if you testify in court – if you say one thing in court but said another thing on your Facebook page, the other side’s attorney can use it in trial.
Photographs that opposing counsel finds on your social media sites (or that are provided to the attorney by their client or someone else) are also admissible against you if they are relevant or if they contradict your testimony…
How can Facebook and Other Social Media Posts Be Used Against You?
Many people don’t realize just how damaging their social media commentary and photographs can be when opposing counsel finds them.
If you are ranting about politics on Facebook, no matter how offensive your commentary may be to some people, that’s probably not relevant to your case and probably not admissible against you. But, if you are providing updates or commentary on your case, or the circumstances that led to your case, it can cause irreparable damage to your case.
For example, in a criminal case, if you are charged with murder in a gang-related case and your social media contains pictures of you displaying guns, money, and throwing gang signs, there is a good chance jurors are going to see those social media posts at your trial.
In a civil case, the insurance company’s attorneys will also search your social media sites to find any photographs or comments that would help them to show that your injuries are not as severe as you claim…
Is Social Media Evidence Admissible to Reduce Your Damages?
If you have been injured in a car accident or other incident that led to a lawsuit for damages, you are probably trying to recover. It is normal and completely acceptable for someone who has been injured to work hard to heal, recover, and try to live a normal life again.
But daily activities like going to the gym, swimming with the children, playing sports, or enjoying a family vacation can become evidence for an insurance defense lawyer who wants to persuade a jury that you are faking your injuries or faking the extent of your injuries and therefore not entitled to full compensation:
For example, in a recent personal injury lawsuit, Largent v. Reed, the plaintiff claimed that a recent accident had left her with severe physical and mental pain. During the course of the litigation, defendants presented the court with that person’s post-accident photos posted to her Facebook account. These photos demonstrated plaintiff was clearly feeling well enough to engage in her daily activities, attend the gym, and otherwise thoroughly enjoy life. Presented with this information, the court ordered plaintiff to hand over her Facebook login information for further inspection.
What can you do to prevent the other side from taking your social media content and using it against you?
Should You Delete Your Social Media Posts?
If you delete social media content while you are involved in a lawsuit, the court might consider that destruction of evidence, especially if it is deleted after the content has been brought to the court’s attention…
At worst, you could be held in contempt of court or charged with obstruction of justice (not likely, but possible). At best, it may be considered “spoliation of evidence” – jurors may be instructed by the court that you destroyed evidence and that they are free to hold that against you.
How Can You Protect Your Social Media Accounts from Spying?
You should never assume that your social media accounts are private. Even if they are set to “private” and viewable only by your friends, one of your “friends” may take the content and put it in the hands of the attorney on the other side of your case.
They are also subject to subpoena in both civil and criminal cases – Facebook and other social media sites, in most cases, will comply with a subpoena and turn over your social media content to defense lawyers or prosecutors.
So, what can you do?
- Delete your social media accounts (unless you are already involved in litigation – see above).
- If you keep your social media accounts, don’t put anything on them – including “direct messages” – that you would not want to hear or see in the courtroom.
- Don’t “liveblog” every aspect of your life on your social media accounts – even something that seems completely innocent, like playing with your children in the front yard, can be twisted into evidence against you by the attorney on the other side of your case.
- Set your social media profiles to “private” as opposed to public or viewable by “friends of friends.”
- Go through your FB friends and others who can view your social media content and remove anyone who is not supposed to be there – also, do not accept “friend requests” unless you are certain that you know and trust the person.
- Do not allow people to “tag” you on social media sites and monitor the content of friends and family – photos taken by friends and family can be used against you just as the content on your own profile can be used against you.
- Use a reliable VPN that protects your online activity from monitoring and snooping.
Most importantly, remember that an insurance defense attorney’s job is to shut down or minimize your claims, and they will search for any evidence they can use against you. Similarly, a prosecutor’s job is to get a conviction, and they will attempt to use any admissible evidence against you to persuade jurors that you are guilty of the crime.
Be smart and keep a low profile online when you have any kind of court case pending…
SC Criminal Defense and Personal Injury Lawyers in Myrtle Beach
If you have been injured due to someone else’s negligence or if you have been accused of a crime in SC, use discretion on your social media sites and get an experienced attorney on your case immediately.
You can call the personal injury and criminal defense attorneys at Coastal Law now at (843) 488-5000 or get in touch through our website to speak with a Myrtle Beach attorney today.