YOU MAY DANCE LIKE NO ONE IS WATCHING, BUT POSTING ON SOCIAL MEDIA MAY BE EXHIBIT A IN COURT

By Eric Marcy, Esq.

There are no secrets on the internet. Today, people willingly post the most personal and sometimes embarrassing information about themselves, their families, their friends, and believe it or not, even their co-conspirators.   If the Government was involved in investigating and compiling the detailed information that people willingly disclose, it would be accused of invading privacy and being “Big Brother.”  It is remarkable as to the extent people willingly and recklessly surrender their privacy to the internet without a second thought.

Be Aware of Evidence on Social Media Involving Anticipated or Pending Investigations or Litigation

            People post photographs and comment about incidents that involve potential family law issues, civil lawsuits, criminal investigations, and/or criminal charges. Many people voluntarily disclose information on social media sites that would be better to keep private. In this “brave new world” people “drink and post,” engage in gossip, conduct their own investigations, try to make identifications, and create a record that may be damaging to their personal interests or the interests of friends. It is not unusual for reckless postings to occur in incidents involving parties or clubs where allegations of physical or sexual assault arise. Posting pictures of people using alcohol or drugs at a party might seem funny, but not be the wisest action if there is a pending criminal investigation, if there is a custody battle, or if the subject is seeking employment. It sounds obvious, but people disregard the obvious and post at their peril.

Admissibility of Social Media in Court Cases

            Under the New Jersey Appellate Division Opinion in State v. Hannah, 448 N.J. Super. 78 (App. Div. 2016) the courts have confirmed how twitter postings may be authenticated. Social media postings may now be authenticated as any other “writing” under New Jersey Rule of Evidence 901. Despite the ease in which digital media may be manipulated, the court rejected an argument for a higher standard for authentication. The court confirmed that a combination of circumstantial factors related to the posting, such as context, prior communications, expressing specific knowledge of an event/issue, profile information, and photographs may be sufficient to demonstrate sufficient authentication.

Social media has become a rich source of information for litigation and authentication is possible through direct proof, circumstantial evidence, contents/knowledge, reply and other miscellaneous forms of establishing reliability as any other form of writing. Be aware that the standard for authentication of social media set forth in the Hannah case is being applied to all forms of social media, to emails, to electronic messaging, and to videos.

Evaluating Social Media as Potential Evidence

            In today’s world, many investigations begin with reviewing the public social media of the target of an investigation or witnesses to an incident or person being investigated. Social media information has become an invaluable source for the collection of evidence. It is therefore appropriate that in every case counsel and clients should consider whether there may be evidence documented on social media and consider:

  1. Warning clients not to post anything on any social media platform regarding any pending civil matter, investigation, or a criminal charge.
  2. Determine if your client knows of posts by other individuals that are relevant to a disputed matter. If so, find out the nature of the posting, how your client is aware of its existence, so that as counsel you may determine what steps, within counsel’s ethical constraints, be taken to review and/or preserve such information.
  3. While any investigation, civil or criminal investigation is pending counsel should caution the client that it is preferable not engage in social media activity without first discussing the issue with counsel.
  4. Ascertain all social media platforms used by a client so that counsel may, if necessary, review any postings and assess the significance of such content and whether the information may be adverse/problematic in the representation.
  5. Clients should be advised that as to existing posts, there may be a duty to preserve the evidence and therefore the client should be counseled not to delete information.   Once posted, information can almost always be recovered, and the deletion of posts may be considered obstruction or an attempt to destroy evidence.  A client will not necessarily know whether the information helps or hurts their interest. Counsel is in the best position to determine how social media posting should be handled.
  6. If a client has posted information that may be problematic, until counsel has conducted a full investigation the better practice is to simply direct the client to revise all settings to be to the narrowest level of access permitted by the platform. Counsel should then immediately review the information for relevance, preservation, and to determine how it can best be addressed.
  7. Whenever there is any potential for administrative, civil, family law, or criminal litigation, any social media activity that is material to the litigation should be discussed with counsel. At the earliest possible stage counsel must find out from the client what is out there, what it means, and how best to protect the client’s interests.

The “Social Media Conversation” between Counsel and Clients

            The “social media conversation” with between counsel and clients should be conducted at the earliest stage of any representation where social media may be a source of evidence. Counsel and clients must be cautious because the deletion of evidence or the improper accessing of social media information through misrepresentation or fraud may have serious ethical implications for counsel and may have serious personal exposure for a client.

Our criminal defense and family law attorneys at Lyons & Associates, P.C. are available to discuss any concerns you may have about social media, pending investigations, anticipated litigation, or pending litigation. Contact Mr. Marcy by phone at 908-575-9777 or by email at [email protected] to schedule a free consultation. We have offices located in Somerville and Morristown, New Jersey, and represent clients throughout New Jersey including, but not limited to, clients throughout Somerset County, Morris County, Middlesex County, Union County, Essex County, Bergen County, Hunterdon County, Warren County, Sussex County, Passaic County, and Monmouth County.

References:

State v. Hannah, 448 N.J. Super. 78 (App. Div. 2016)

State v. Kuropchak, 221 N.J. 368, 385-86, 113 A.3d 1174 (2015)

State v. Mays, 321 N.J. Super. 619, 628, (App. Div.), certif. denied, 162 N.J. 132 (1999)

In the Interest of T.M., No. A-2883-17T2, 2020 N.J. Super. Unpub. LEXIS 1577 (App. Div. Aug. 11, 2020)

State v. Kim, No. A-0552-17T4, 2019 N.J. Super. Unpub. LEXIS 829 (App. Div. Apr. 9, 2019)

Tech. Dynamics, Inc. v. Master, No. A-0952-17T3, 2019 N.J. Super. Unpub. LEXIS 445 (App. Div. Feb. 26, 2019)

State v. M.F., No. A-3602-15T2, 2018 N.J. Super. Unpub. LEXIS 41 (App. Div. Jan. 9, 2018)

New Jersey Rule of Evidence: N.J.R.E. 901, N.J.R.E. 801, N.J.R.E. 803