Facebook And The Fifth: Social Media Can And Will Be Used Against You
Contrary to what many might believe, the Fifth Amendment was enacted to protect the innocent as much as, if not more than, the “guilty.” As a criminal defense attorney, I can assure you most people take their Fifth Amendment privileges for granted. But even those with the intestinal fortitude and good sense to realize they have a slim chance of talking their way out of the interrogation room may sabotage their own case when seated comfortably in the safety and security of their homes.
Most people are not as ferocious, argumentative, arrogant, insensitive, or self-absorbed as their Facebook persona may make them out to be. Most people would not dream of saying to another human being face-to-face what they might casually post online. And most people do not consider how a post, message, picture, or tweet would be viewed by a total stranger before indelibly etching it into the collective electronic narrative of our increasingly technology-based society.
Facebook posts, messages and pictures, along with tweets and blogs, are snapshots, or sound bites if you will, and can easily be taken out of context and used to create a false narrative, a dark and troubling image in the minds of judges and jurors. Inside jokes may not be well received by those sitting in judgment of our motives, actions, or omissions. And as of yet, laptops do not come with an “internet interlock device” allowing us to post online only after passing a breath alcohol test.
Drunk or joking posts are one thing– but in some cases a post, tweet or message may be exactly as it appears, a lesson to which Julie Calahan of Virginia Beach can attest.
Earlier this month, Ms. Calahan pleaded guilty to felony child abuse and voluntary manslaughter for her role in the tragic death of her 11 month old daughter, Lakeira, in May of 2009. Investigators had believed the case was closed after Ms. Calahan’s brother-in-law pleaded guilty to child neglect. But the case was quickly reopened when investigators received a copy of a Facebook message originally sent by a “Juls Calahan” in which she admitted to hurting Lakeira. Investigators traveled to Arkansas to question her and obtained her confession for their troubles. Ms. Calahan now faces up to 20 years in prison when she returns for sentencing on November 14, 2012.
Google the terms “Facebook,” “criminal” and “charges” and you will get over 54 million hits. While the vast majority of Facebook users aren’t confessing to causing the death of their children, social media posts can impact a pending or even closed criminal case. For example, prosecutors can and will print statements or pictures posted online and use them at bond hearings, revocation hearings, sentencing hearings, and even at trial.
How will a judge view pictures of red Solo cups and beer pong tables at a bond hearing for a second DUI charge within 5 years? How will the jury respond to pictures seemingly glorifying the drug culture at a possession with intent to distribute trial? Will the members of the jury know that hookahs are most commonly used to smoke tobacco? Will they see gang signs behind every hand gesture? Will they recognize those seemingly incriminating statements are really just song lyrics? Is that iPod the same one that was stolen from the house that was burglarized? Will a Facebook “flame war” ruin a claim of self-defense? Will those posts blowing off steam be seen as witness intimidation, threats, or as a violation of a protective order?
There is a perceived safety, a sense of anonymity and freedom, in our electronic personas that can lead to complications not simply confined to criminal cases. There is permanence to our postings, musings, ramblings, and communications which we do not always keep in mind when logging into our accounts. And there are real consequences to each keystroke, picture, or video we choose to share with a community made up mostly of strangers. Whether you have been charged with a crime or not, it is important to keep in mind that everything you post online can and often will be used against you in a court of law.