A few years ago, I wrote a column warning people about their use of social media, like Facebook, Twitter, and Instagram. At the time, lawyers were not using these social media outlets much in their cases.
Things have changed.
While I enjoy social media, particularly Facebook, I realize that it can be abused. Hateful political arguments, personal grudges, and family feuds come to life on the computer screen with a few clicks on the computer.
There are also aspects of social media that can affect a person’s liberty, children, and financial well-being. Almost everything a person posts is subject to being put on the big screen in a courtroom. There is little to no privacy in the use of social media.
On June 1, 2015, the Georgia Supreme Court re-affirmed the authentication evidence rule (how to get a piece of evidence admitted) pertaining to Facebook in an opinion called Cotton v. State. In Cotton, the Court said that writings from electronic sources such as printouts from a website like Facebook are subject to the same rules of authentication as other more traditional documentary evidence (like letters) and may be authenticated through circumstantial evidence (like 3rd parties identifying someone’s tweet or post.)
This means that it is fairly easy for good lawyers to introduce a person’s posts, pictures, tweets, and other things into evidence.
CRIMINAL CASES – Some of the most damaging Facebook evidence I have ever seen has been in criminal trials. For example, it’s difficult to deny gang membership when the big screen in the courtroom shows a person covered with gang tattoos throwing out gang signs with 6 other alleged gang members.
It’s also difficult to deny threatening someone when a person’s Facebook post says something along the lines of “Tom, I am going to kill your punk a —— ———- ——— the next time I see you. You are nothing but a ———- ———— ———–. You ———-.
In trials, the actual words are used.
Prosecutors and defense attorneys are becoming more and more proficient in investigating the Facebook pages of defendants and witnesses in all types of criminal proceedings.
CIVIL CASES – The same can be said for civil cases. Many of my criminal cases are referred by family law attorneys when their clients are charged with things like family violence battery, disorderly conduct, and more serious offenses associated with the family law case. Facebook posts in civil cases oftentimes affect the outcome in criminal cases.
Additionally, I see the civil lawyers using Facebook evidence more that prosecutors, particularly in child custody cases.
It can be very damaging to post a picture of one of the parties downing a super large margarita with friends cheering along when substance abuse is at the center of a divorce/child custody dispute.
SOCIAL MEDIA USE – I use social media, particularly Facebook, for a number of reasons. I can stay in touch with my family, share posts and photos that are important to me, and update friends on my practice. I also share my columns on social media.
It seems that hundreds of thousands, maybe millions, of people share some of my enthusiasm for social media. But, it has a very dark side as well.
Facebook is quickly becoming one of the primary ways to prove or disprove a case in court.
This use of social media in a courtroom will only gather more steam as time goes on.