Police and prosecutors often find evidence of crimes in the strangest places. More and more, social media is becoming a treasure trove of evidence for criminal cases, with prosecutors presenting posts, videos, and recordings of livestreams in court to convict defendants.
Your social media can be used against you in a criminal case in three major ways. First, if your posts were themselves criminal (e.g., threats), then they can be presented as evidence. Second, if you posted evidence of a crime, the posts can be used against you. Third, previous posts might be used in some cases to show your plan, intent, or collaboration leading up to a crime. However, there are many tools defense attorneys can use to get this evidence blocked or excluded.
If you were charged with a crime, contact the NJ criminal defense lawyers at the Law Offices of John J. Zarych by calling (609) 616-4956 today.
Evidence for Crimes Committed Through Social Media in NJ
Many times, social media posts themselves are part of the crime you are being charged with. This is most common in cases of threats, harassment, or stalking, where the statements made on social media are the threats, harassing statements, or contact involved in these offenses. In these cases, the police will often use publicly available posts or subpoena the social media site to get these posts and use them as evidence in court.
In some cases, posting a picture or video might be the illegal conduct involved in the crime. This could come up in cases of child pornography crimes, where a picture or video of a minor is shared on social media. In other cases, pictures or videos of someone might be posted to harass them or as “revenge porn,” which can be charged as a crime in NJ.
Using Social Media Posts as Evidence of a Crime in New Jersey
In other cases, short text posts, long-form blogs, pictures, and videos posted on social media might be evidence of a crime. Police can similarly obtain any public posts or subpoena the social media site for this evidence and use it against you in many cases.
This is most common in cases where there is video of the crime taking place, such as in cases where someone posts a video of a fight or records a crime. A picture or video with drugs in the frame could also be used as evidence of drug use/possession.
Using Previous Social Media Posts to Show Plans or Intent in an NJ Criminal Case
Often, people do not commit crimes suddenly. Social media posts are often presented in court to show the defendant’s plan to commit a crime to link the actions back to them.
For example, if you have a dozen posts over the past few months saying how much you hate someone and how much you want them dead, and then they turn up dead, these posts would make you a prime suspect.
Screenshots or logs of posts, replies, threads, and text conversations can also supply evidence of a more specific plan and potentially even a conspiracy. If you were chatting with a codefendant about your plan to rob someone, it would provide not only proof that you did follow through with the plan but proof that you worked with someone else. Agreeing with someone else to commit a crime can result in separate charges for conspiracy, and the messages or posts would be necessary evidence to show the agreement happened.
Laws for Using Social Media Posts Being Used as Evidence in a Criminal Case in NJ
Just because social media posts are often used as evidence does not mean that they should be used or that they can legally be used against you in every case. The following issues are some important legal points about how evidence can and can’t be used in a criminal case under NJ law.
Recordings
NJ is what’s called a “one-party consent” state when it comes to being able to record conversations with other people. This means that only one person in a conversation needs to give consent to the conversation being recorded. In “two-party consent” states or in a federal case (where two-party consent is required), a recording is blocked from being evidence – and potentially grounds for criminal charges – if it is made without all parties’ permission.
What this means in practice is that if someone records a video of you, and you did not know you were being recorded, it can still be used as evidence.
Hearsay
Statements made outside of the courtroom are considered hearsay if anyone tries to introduce them in court as evidence that what the statement says is true. For example, if someone posted online that they saw you commit the crime, that post cannot be used as evidence that you committed the crime. Instead, the prosecutor needs to find that poster and have them come in and say it on the stand, under oath, where we can cross-examine them.
However, statements that you make can always be used against you as a general exception to the hearsay rule.
“True Threats”
People say a lot of things on social media, many of which they do not actually mean. For a statement made anywhere – whether on social media or not – to constitute a threat, it must be a “true threat.”
A 2015 U.S. Supreme Court case called Elonis v. U.S. held that a threat is not a “true threat” unless it is intended to be a threat from the speaker’s subjective viewpoint, not an outside listener’s viewpoint. In 2023, the Court went further and held in Counterman v. Colorado that the speaker needs to understand that someone else could conceive of their statements as threatening for them to be “true threats,” using a recklessness standard. Both of these cases dealt with threats on social media, making them important precedents in similar cases.
Third-Party Doctrine for the Fourth Amendment
The Fourth Amendment protects people from illegal search and seizure and requires a warrant when the police want to seize evidence. However, a big exception to this is that the police do not need a warrant to seize evidence or communications that you shared with a third party, as there is no expectation of privacy when you are showing someone else. When it comes to public statements and posts put on social media, you have no expectation of privacy, and the police can seize them and use them against you.
Relevancy and Character Evidence
Police and prosecutors cannot use evidence that is irrelevant or just paints you in a bad light without providing evidence of what happened in the case. If they try to introduce old posts of yours simply to show that you are a “bad person,” that can be blocked under a few different legal principles.
Call Our NJ Criminal Defense Lawyers Today
For a free review of your potential case, call the Law Offices of John J. Zarych at (609) 616-4956 for a free case assessment with our Atlantic City criminal defense attorneys.
