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Social media posts can derail a criminal defense

Social media use is a common practice with the onset of new avenues for communication including Facebook, Instagram, Twitter and more. It's not uncommon to see friends and family post about both positive and negative developments in their lives.

What if someone charged with a crime starts venting about the process and airing their grievances? A good criminal defense attorney should tell all clients the same warning: anything you post online prior to or during a trial can influence and potentially damage the case.

Public posts are publicly available

A social media profile may seem secure on face value. You add people as friends and allow them to see your posts, so doesn't that mean only they can find them? On the contrary, it is not difficult for almost anyone to find social media posts and profiles, even without connecting to the user on the site.

A simple Google search for a defendant's name can produce results for law enforcement investigators and even prosecutors. Most police departments now use social media profiles to obtain evidence, either through searching for posts or contacting the company for access to user data.

Technology companies don't immediately cooperate with police investigations as seen during the San Bernardino, California shooting investigation in 2015 and 2016. Apple refused to comply with FBI orders to unlock a device to the point that investigators reportedly found another way to access the information without Apple's cooperation.

Changing legal landscape

The California Supreme Court ruled recently that companies like Facebook must comply with investigators' demands to turn over information from criminal defendants. The case will return to the trial court, but an appeals process could bring this case or another similar issue to the national level in the coming years.

The best advice to criminal defendants may be to completely abstain from social media use leading up to a trial, or at least to refrain from commenting on the case online. This doesn't mean defendants should delete profiles because that could prove an issue in a case as well.

Defendants need to know they still have rights and privileges to speak and post in a public venue, but to do so carefully. Don't let your past posts hinder a criminal defense.

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Lerner & Lerner, P.C.

Former prosecutors with more than 50 years of combined experience

Lerner & Lerner, P.C.
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Suite 125
Carle Place, NY 11514

Toll Free: 800-747-4996
Phone: 516-741-4100
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