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The Challenges of Social Media Evidence & Criminal Defense


The availability (or lack thereof) of evidence from social media sites in an effort to provide a jury with the truth is a serious issue in criminal defense and the criminal justice system.

This is due, in part, to the fact that our system is based on the presumption of innocence, and a conviction not only robs a criminal defendant of their freedom, but can also have other collateral consequences: their reputation, family, job, sometimes even their life. For this reason, as we have previously discussed, it is crucial for the defense to have at its disposal every relevant piece of evidence out there.

And yet, when it comes to social media companies handing over content, there is a very clear bias in favor of handing this information over to the police and prosecution; specifically, federal law forbids this same information from being shared with defense attorneys under some circumstances, as we discuss in greater detail below.

The Stored Communications Act & Its Interference with Criminal Defense

The barrier behind this burden is the Stored Communications Act. Passed in 1986, it arguably conflicts with the constitutional rights of criminal defendants by barring companies from sharing information with anyone except for the intended recipient and sender by only allowing for the disclosure of private social media information under the issuance of a court order or warrant (both of which first require a showing of probable cause).

And yet, the Act’s authors never specifically contemplated just how the concept of “privacy” applies when it comes to social media, setting up an inherent conflict in modern times: While the social media companies maintain that this information should be obtained from the government via a court order, many respond that this is overly burdensome and unconstitutional in terms of ensuring a fair trial, and often leaves defense attorneys trying to obtain evidence from the companies and prosecutors, who then claim that it is not their responsibility to help the defense obtain evidence.

Unfortunately, the courts have not been of much help in resolving the issue: While companies have been ordered to provide this information, a defendants’ fair trial rights have been found to begin at the pretrial stage of a case, meaning that a defendant and their attorney must wait until trial to obtain this information, and until then, the Stored Communications Act prevails.

The California Supreme Court will soon decide on whether the Act is inherently unconstitutional because it undermines the ability for criminal defendants’ to put together their case and whether it ever even contemplated covering social media posts as “private” communications.

Experienced Criminal Defense Attorneys Serving Florida & Massachusetts

If you or a loved one has been accused of a crime, it is crucial that you work with experienced legal counsel that is familiar with the many challenges involving evidence in the case. Contact the Baez Law Firm today to find out more—we serve clients throughout Florida and Massachusetts.


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