Can social media be used as evidence in Texas criminal cases?

Most of us have heard the famous Miranda Rights line “anything you say can and will be used against you in a court of law” from film and television.

That includes just about anything you’ve posted on social media.

Law enforcement and prosecutors can use your social media history as evidence against you in Texas criminal cases in multiple ways.
The comments, images, videos, likes, and shares on social platforms such as Facebook, Twitter, and Instagram can easily be searched by investigators, and the information can be used in court.

Furthermore, investigators can request access to certain restricted social media data using a judge-approved search warrant, subpoena, or other court order.

It’s not just the content of your social media accounts that could hurt your case. The embedded information connected to online apps can help prosecutors build an incriminating timeline against you.

The Varghese Summersett criminal defense team is adept at working with clients to minimize any potential social media issues. Our firm includes Board Certified criminal defense attorneys and former prosecutors who will proactively defend your rights.

In this post, we’ll examine how social media can be used as evidence, whether deleting posts and accounts is helpful, and how to handle your social media history during a criminal case in Texas.

How can social media posts harm my Texas criminal case?

Prosecutors can use any incriminating social media information in court. Examples of social media posts that could harm your case include:

• Threatening messages
• Comments or images that contradict an alibi
• Anything that contradicts your previous testimony during an investigation
• Information that identifies your location before, during, and after an alleged crime
• Comments by family or friends that could be misinterpreted

Are my private social media communications safe from investigators?

Not really. Even if you use the highest privacy settings on your social media accounts, prosecutors and investigators could obtain a search warrant to explore your electronic devices for incriminating data, including:

• Records of deleted social media posts;
• Private posts shared with friends, and
• Private messages, including emails.

Should I delete social media accounts if I’m facing criminal charges?

If you’re facing criminal charges, you might think it’s a smart move to delete social media posts or entire accounts with potentially incriminating information.

Not necessarily. You should consult your criminal defense attorney before deleting anything. Prosecutors and investigators could view any deletions as an attempt to erase evidence. Even worse, it could open you to criminal liability for tampering with evidence. Either way, it could hurt your defense. A skilled defense attorney will have a strong understanding of how you should handle your online history.

It’s not just about the content on your social media feeds

The content of your social media feeds is not the only thing you need to be concerned about. Prosecutors and law enforcement can use information such as your location, time stamps, and other encrypted data to help make their case against you. It’s not just your social media history that could hurt you; investigators can search other feeds that include photos or information that place you somewhere at a specific time.

It’s essential to be open with your defense attorney about any potentially problematic social media data. Defense attorneys don’t want to be caught by surprise by the prosecutor with damaging social media evidence.

Can social media be used as evidence in Texas DWI cases?

Yes, social media history can be used as evidence against you in a driving while intoxicated case. Investigators and prosecutors will often search your social media timelines to see if there is anything relevant to your arrest. They can also search posts made by others to look for incriminating evidence against you. It could hurt your case if a friend posts an image showing you drinking a glass of wine 30 minutes before your arrest.

The posts don’t necessarily have to show you drinking to incriminate you. Posts on social media help provide a timeline of your whereabouts. If you checked in online from a bar earlier in the night, it could be detrimental to your defense. Deleting social media posts is unlikely to protect you.

Law enforcement could retrieve deleted posts, and they could view the deletion as an attempt to destroy evidence. That will not help your case. An experienced criminal defense attorney will help you handle potentially harmful posts.

Does attorney-client privilege include social media and email?

Yes, written and verbal communication between you and your attorney about a case is protected under attorney-client privilege. This includes email exchanges and private messages through social media apps. Remember, do not discuss your case with family or friends because it could be used against you in court.

How should you handle social media during a criminal case?

If you’re facing criminal charges, it’s essential to ramp up your privacy regarding your social media accounts.

You should set your privacy settings to the strictest possible and decline all friend requests from strangers. It’s wise to avoid commenting on or tagging other social media posts while your case is unresolved. Ask friends and family to avoid posting comments about you or your pending case.

What is the ‘reasonable juror’ standard in Texas?

Texas uses the reasonable juror standard to determine the authenticity of social media evidence. This standard, via Tienda v. State in 2012, requires that the evidence provider illustrates that the “supplied facts are sufficient to support a reasonable jury determination that the evidence he has proffered is authentic.”

The Texas Rules of Evidence require that the evidence be relevant to the case, admissible for the purpose intended, and authenticable.

How is social media obtained as evidence in a Texas court?

There are three significant ways prosecutors and defense attorneys gather social media history for use as evidence in a Texas criminal case.

Direct access
The simplest and most direct way to gather social media evidence is by going directly to the source and using what is available in the public domain. Often, evidence gathered in the public domain can lead to more intrusive discovery requests later, including interrogatories and depositions. Public posts and communication on an internet forum or social media app don’t require a court order.

Traditional discovery procedure
When someone’s social media or online communication is unavailable to the general public, information is gathered in court through the traditional discovery process. Interrogatories are used to request screen names or online identities used on websites or social media applications.

Forensic examination
In rare cases, a judge could order a forensic examination of a computer to search for hidden or deleted information that could be used as evidence. In most cases, however, direct access to the opposing party’s computer isn’t allowed.
In a 2018 ruling, the Texas Supreme Court held that direct access to someone’s computer or electronic storage device requires, at a minimum, that the benefits of the search outweigh the burden imposed on the discovered party.

What are the Texas standards for social media evidence admissibility?

In Texas criminal cases, social media evidence is governed under the same standards as other forms of evidence. The evidence must be relevant to the case, authenticated, and can’t be hearsay.

Relevance: This means the evidence tends to make the existence of any material fact more or less probable than it would be without the evidence. Also, the probative value must outweigh the prejudicial effect, which means the degree to which a piece of evidence proves an allegation must be more than the amount the evidence diminishes the court’s ability to determine the truth.

Authentication: Texas Rules of Civil Procedure section 193.7 allows for information from social media sites to be authenticated:

“A party’s production of a document in response to written discovery authenticates the document for use against that party in any pretrial proceeding or at trial unless – within ten days or a longer or shorter time ordered by the court, after the producing party has actual notice that the document will be used – the party objects to the authenticity of the document, or any part of it, stating the specific basis for the objection.

An objection must be on the record or in writing and have a good faith factual and legal basis. An objection to the authenticity of only part of a document does not affect the authenticity of the remainder. If an objection is made, the party attempting to use the document should be given a reasonable opportunity to establish its authenticity.”
The rule creates a presumption of authenticity for documents produced during discovery.

Hearsay: Typically, any out-of-court statement offered in evidence to validate an assertion of fact is hearsay and not admissible. Exceptions to the hearsay rule could apply to any evidence, including social media data.

What social media data is discoverable in Texas courts?

The Texas Rules of Civil Procedure section 192.3 provide that discovery is permissible if it pertains to relevant evidence or may lead to the discovery of admissible evidence.

The scope of discovery includes documents and tangible things under which social media information falls.

Is social media being used as evidence against you? Call us.

Having a criminal defense attorney proficient with technology and the quickly evolving presence of social media is vital. At Varghese Summersett, our criminal defense team knows how to defend against such evidence and how to use it to fight for our clients most effectively. For a free consultation on your case, call 817-203-2220.