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  • Social Media: How It Can Be Used Against You in Court

    Posted on by New Mexico Criminal Law Offices

    Social media and how it can be used against you.You can easily imagine the horror: You’re on trial for a serious crime when the prosecution presents evidence of social media posts that you never made. The messages appear to have been posted from your account, but you know that you never created them. This illustrates just one of the many potential problems with using social media evidence in criminal trials.

    Social media platforms, including Facebook, Instagram, Snapchat, and others, have become a common fixture in the lives of most people over the past two decades. These companies allow people to stay connected to friends and family more easily than ever before. You can share your pictures, thoughts, opinions, and comments on almost every conceivable subject, which, for those facing criminal charges, can cause problems.

    Over recent years, prosecutors have relied more and more on social media evidence to obtain convictions against criminal defendants. However, given the relatively recent availability of social media evidence, the laws governing the discovery, authentication, and use of this critical evidence has not yet been solidified. Due to the uncertainty surrounding the subject, judges are often put in the position to resolve evidentiary issues involving social media posts without much guidance. And because most judges lack significant experience dealing with social media evidence, their opinions are often based on their “best guess” about what the law requires.

    What Types of Social Media May Be Used as Evidence?

    Social media platforms host an enormous amount of potential data about their users. Some of the most common types of social media evidence include:

    • Posts, Tweets, and comments;
    • Videos;
    • GPS-location data;
    • Check-ins;
    • Group membership;
    • Chat history; and
    • Friend lists.

    All this information may be accessible by prosecutors, either if your profile is public or if they obtain a subpoena and serve it on the social media company.

    Is Social Media Content Private?

    Yes and no. While making your profile private will prevent other users from accessing your profile and any content you post, the content is not beyond the reach of the government if it obtains a subpoena.

    A subpoena is a court order requiring a party to provide certain requested information. They are routinely used as part of the evidence-gathering process. For example, prosecutors often serve subpoenas on cell phone companies to obtain records of a party’s text messages. They can do the same to obtain social media content.

    Should You Delete Your Social Media Account Once You Suspect You Are Under Investigation?

    Again, this is not a question with a straightforward answer, but generally, it is not a good idea to delete your account once you find out you are under investigation. The reasons for this are two-fold. First, deleting your account will not delete all the content that you’ve posted over the years. Social media companies store content well beyond the termination of your account. So even if you delete your account, prosecutors will more than likely still be able to locate all information related to your profile.

    Second, deleting your account may make it look like you were trying to cover up evidence. This can make a bad situation worse. If the prosecution locates your social media history, your lawyer may be able to help you present an innocent explanation to counter the prosecution’s theory. However, if you deleted your account, it may be taken as a sign that you knew the material on your account was harmful to your case. In legal terms, this is called showing a “consciousness of guilt.”

    Problems with Using Social Media Evidence in Criminal Trials

    Considering the fact that once social media posts are made they cannot be taken back, it can be challenging to deal with social media evidence. However, there are a few hurdles that the prosecution must clear before being able to use the evidence as it intends.


    While the prosecution is able to use subpoenas to obtain evidence, there are limitations on their ability to obtain social media evidence. Generally, the prosecution must be able to show that there is a reason to believe that the information they are seeking exists and that it is relevant to the trial. They can’t just subpoena all your accounts based on the vague hope that you might have posted something incriminating. However, in many cases, the word of a witness that they saw incriminating posts on your social media will be enough to grant the prosecution access.


    Referring to the example at the beginning of the post, it is not hard to falsify social media evidence. Before a court admits any type of evidence in a criminal trial, the evidence must be authenticated. Essentially, this means that there must be some collaborating proof that the evidence is, in reality, what the party presenting the evidence claims it to be.

    In the case of social media evidence, it could be authenticated if you admitted to posting it or if someone witnessed you post it. Additionally, if the prosecution is able to tie your location at the time of the post to the location where the post was made, this may serve to authenticate the evidence.

    While social media evidence can be especially damning, it is not without its issues. If you are facing New Mexico criminal charges and believe that the prosecution may access unfavorable content from your social media accounts, reach out to a dedicated New Mexico criminal charges defense legal practitioner for immediate assistance.

    Have You Been Charged with a Serious New Mexico Crime?

    If you face criminal charges, you need a lawyer who will take the case as seriously as you do. At the New Mexico Criminal Law Offices, we provide our clients with an exceptional level of representation throughout the criminal trial process. With more than 20 years of experience handling all types of serious crimes, including many cases involving social media evidence, our lawyers are prepared for whatever the prosecution brings. We will diligently work to prevent as much inculpatory evidence from coming into the trial as possible and work with you to explain or defend against evidence that ends up in front of the jury. To learn more and to schedule a free case evaluation, give our experienced New Mexico criminal charges defense legal team a call or reach out to us through our online form.