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Facebook Posting Admissible as Evidence in Michigan Criminal Case

Sep 16th, 2016 Criminal Evidence

According to the Michigan Court of Appeals, Facebook postings are admissible as evidence against a person accused of a crime in Michigan.  In a recent case involving assault with intent to commit murder, felony firearm and other charges, the prosecutor found and presented to the jury evidence obtained from the defendant’s Facebook page.  The defendant objected, and the Court of Appeals opinion says this:

Defendant contends that the trial court abused its discretion when it admitted a Facebook posting into evidence without sufficient foundation. At issue is a page purportedly from defendant’s Facebook page on which is a picture of McKinley, the initials “RIP,” and a post reading, “Shuldd I let em kill me or turn myself ndd. I’m facing life nd da gtt dam pin…rest -6- in peace Ne-Ne, catch me nd traffic.”

The defendant also objected to admission of gang-related photographs also obtained from Facebook.

The court held that the Facebook evidence was admissible because a witness had personal experience with defendant’s Facebook page, and testified that the evidence at issue undoubtedly was what the prosecution said it was, i.e., a screen shot from defendant defendant’s Facebook page.

It is a strange phenomenon that some people actually post evidence of their crimes on Facebook, but it does happen. What’s more common is for people to carelessly or thoughtlessly post things on their Facebook page that can later be used as evidence of a crime.  Not an outright admission of a crime, but evidence in support of it.

Unfortunately, this is all too common because many people believe that their Facebook pages and other forms of social media are private.  However, quite the opposite is true.  Anytime you post a photo or a comment on social media, a permanent record is created, and this record can later be obtained by law enforcement and used as evidence of a crime.  In fact, it is becoming increasing common for prosecutors to check the social media of all people that are charged with acts of criminal activity.  Their hope is that they will collect information from the social media that can be used to support the criminal charge.   Attorneys in general use social media in the preparation of their cases, for example, an attorney might use embarrassing photos to demean the credibility of a fact witness in a criminal or civil case.

This problem is particularly applicable to young people who have grown up with social media as part of their lives.  But even adults post things to social media that could later become problematic.  For example, if a person accused of drunk driving in Michigan posts photographs of the sports event, wedding or business party they attended, and these photos show use or even abuse of alcohol, then these photographs could be used as evidence at a later drunk driving trial.

When it comes to social media, the best bet is to be as conservative as possible, and never post anything you’d not want a judge or prosecutor to see!  You never know how that decision to post a comment or a photograph could come back to haunt you later, and hitting the delete button is often not good enough.

*Photo courtesy of the USDA