Do Prosecutors Use Facebook and Other Social Networking Sites For Discovery?Have you ever seen somebody over share on Facebook or another social media network platform? Have they said mean things about you or somebody else that could have been used against them to the best of your knowledge? The fact of the matter is that, when you are updating your status on social media, the last thing you may be thinking about is the justice system and the adverse effect it can have on a case. Remember: For the most part, social media is public – this means that there is really nothing to stop the prosecution from using it against the defendant in trial.

Take for example a situation that involves a burglary suspect with an active profile on social media. Florida detectives find out about the profile and keep tabs on what the burglar is doing day-to-day. One day, they stumble upon a new picture he has uploaded that shows him standing in a room that has some of the stolen items from the burglary. They would be able to use the incriminating photo in court if it arrived to that point. This is why people should always think before they post incriminating information about themselves on social media.

Prosecutors will typically have an easier time than defense attorneys at getting private information off of social media platforms. More and more communication is shifting into social media, which is important to remember. Not all conversations are going to take place over a phone or in a text message anymore. Access to conversations may be a little difficult to access sometimes – this is because things like the federal Stored Communications Act exist, which is a protective matter that focuses on the privacy of electronic communications like e-mails. This act carves out an exemption of law enforcement. In one case in crime history, Facebook specifically held conversations that could have disproved a rape charge. However, then the prosecution demanded them, they turned them over willingly.

Right To Privacy
So, what sort of a right to privacy do we have when it comes to social media? This can become a huge issue in the matter of discovery disputes involving things said on the Internet. Litigants still, to this day, believe that messages and posts involved on places like Facebook should be kept “private” and kept out of litigation. However, the courts will usually find that “private” does not mean the same as “not public” and that this is a huge difference. There is really no expectation that anything on social media will stay private. Reason being, content is always being shared with one another (even in cases where only specific friends are chosen) and this means that there is no reasonable expectation to privacy.

Examples of Social Media Being Made “Public” For Court
In 2011, there was a trial known as Zimmerman v. Weis Markets, Inc. The case took place in Pennsylvania. In this personal injury case, the defendants said that there was private contact that was relevant to a case on the plaintiff’s Facebook page. The claim included details that a forklift accident caused permanent injury to the plaintiff’s health and wellness. However, on his Facebook page, there were recent photos of him with a black eye and his motorcycle after an accident. The defense won the case after discovery occurred.

In another case in 2013, Allied Concrete Company v. Lester, Isaiah Lester’s wife, Jessica, was killed in a car accident. However, items on Isaiah’s Facebook page were seen as harmful toward his character. His attorney told him to clean up his page and delete insensitive photos, which he did to avoid blow-ups at trial. His attorney’s office signed discovery responses denying that he had those accounts, which ended in spoliation of evidence. This lead to monetary fines for Lester and his attorney.