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Can a Prosecutor Use Facebook Posts as Evidence Against Me?

Be careful what you say on Facebook - even if you're just quoting lyrics from your favorite song.

Larry Recio posted a line from a rap song on his page, and it may have been the deciding factor in his conviction on charges of being a felon in possession of a firearm.

Recio appealed the conviction, arguing that the district court abused its discretion by allowing the Facebook post into evidence. But the Court of Appeals for the Fourth Circuit disagreed, upholding the conviction and ruling that "the Facebook post was direct evidence of the crime charged ... "

From Rap Song to Rap Sheet

Two police officers who knew that Recio had outstanding warrants approached him when they saw a firearm sticking out of his pants. Recio ran away, and one of the officers claimed to see him ditch the gun. Recio was arrested a month later. But, the prosecution needed evidence to corroborate the officers' claim that he did, in fact, have a gun that day.

During the trial, the prosecution introduced a Facebook post by Recio that read, "It's Always Tucked, Kuz I'll B Damn If My Life Get Took!!"

The post paraphrases a line from the song "Get It in Blood," in which rapper Bloody Jay explains why he "always" carries a gun. The prosecution argued that the post provided evidence - from the suspect himself - that he "always" carries a gun, and therefore he must have had a gun on the day in question.

Never mind that it was a lyric from a song. Or, that most people post nonsensical, non-literal things on their Facebook pages every day...

Anything That You Post on Social Media Might Be Used Against You in Court

Think before you hit the "publish" button on Facebook, Instagram, Twitter, or other social media sites.

There is nothing secret, private, or privileged about anything you put on Facebook or other social media sites. It is perfectly legal for anyone to look at your Facebook page - including an attorney who is filing a lawsuit against you or a prosecutor who is charging you with a crime.

When an attorney is taking action against you, whether it is a civil lawsuit or a criminal prosecution, there is no doubt they will be looking for evidence everywhere they can - including online.

In fact, the nation's divorce attorneys report that Facebook posts have become the single biggest source of evidence in divorce cases, according to the American Academy of Matrimonial Lawyers.

If you think your posts are so mundane that they couldn't possibly be used to incriminate you, think again.

When people post on social media, they make public all kinds of information - where they were and when they were there, who they were with, what kind of mood they were in, whether they have been unfaithful to their spouse, which places they frequent, and details about their lifestyle. For an attorney, your Facebook page is a goldmine of information - evidence - about you.

Something as seemingly innocuous as a flippant comment could be used to bolster an allegation of negligence. Or, a quote from a song lyric could be used to "prove" that you "always" carry a gun...

Can't I Just Delete It Later?

Why not just post whatever you want and then delete it when you need to? Because that could be a crime too.

If you have been charged with a crime or if someone has filed a lawsuit against you, you must be careful when it comes to deleting social media posts, pages, or profiles. Courts have made it clear that a Facebook page is covered by the rules dealing with the preservation of evidence.

Deleting your page or a post that could be relevant to the litigation could result in charges of destroying or tampering with evidence.

Got Axelrod?

The only reliable, legal way to make sure there is no incriminating evidence on your social media pages is: Don't put it there to begin with.

If you have been charged with a crime in SC, call your Myrtle Beach criminal defense lawyer at Axelrod and Associates at (843) 916-9300 or fill out our contact form today to schedule a free consultation to discuss your case.

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