How “Unfriending” Someone Online May Be Used Against You in a Criminal Trial
Social media has become a daily part of our lives. One consequence of this is that anything a person does or says online may later be introduced as evidence in a civil or criminal trial. This poses special challenges for criminal defense, as it is critical for judges to properly authenticate the validity of any social media evidence that the prosecution may wish to use as part of its case.
Md. Court of Appeals: Circumstantial Evidence Enough to Connect Social Media Account to a Defendant
The Maryland Court of Appeals recently addressed this question in the context of a defendant allegedly “unfriending” a co-conspirator on Facebook. The case, State v. Sample, involved a defendant charged with attempted robbery. Specifically, the prosecution alleged the defendant and an accomplice used guns to try and rob a liquor store in Baltimore. Unfortunately for them, the store’s owner also had a gun, which he used to shoot and kill the accomplice before the defendant allegedly escaped.
Facebook provided Baltimore police with two profiles that matched the name of the deceased accomplice. One of the profiles used the name “SoLo Haze.” This account was registered to an email address “firstname.lastname@example.org.” Sample is also the last name of the defendant.
At trial, the prosecution wanted to introduce evidence showing the owner of the SoLo Haze account–which they believed to be the defendant–had “unfriended” the second Facebook account, which was registered to the same name as the deceased accomplice. The prosecution believed this would show the defendant intentionally took steps to “distance himself” from the accomplice in the hopes of avoiding detection. The defense argued there was insufficient evidence to authenticate any of the Facebook records. And even if the defendant “created the SoLo Haze” profile, the prosecution could not prove that he actually used that account to “unfriend” the accomplice.
The trial court overruled the defendant’s objection and admitted the social media evidence. The jury ultimately convicted the defendant on a number of charges. The Court of Appeals held the trial court “did not abuse its discretion in admitting [the] Facebook-related evidence.” Under Maryland law, the test is whether or not a “reasonable juror” could find “ that the social media evidence is authentic by a preponderance of the evidence.” Here, while the evidence was “circumstantial,” it was enough for the jury to conclude the SoloHaze account “more likely than not” belonged to the defendant.
As for the defendant’s claim that someone else could have accessed the SoloHaze profile and unfriended the accomplice, the Court of Appeals said that was “speculation not grounded in evidence.” And in any event, the prosecution was not required to “conclusively disprove” that someone else used the account. This would be “too high a standard for authenticating social media evidence,” according to the Court.
Contact a Maryland Criminal Defense Lawyer Today
What you say and do online can have a significant impact on your criminal case. That is why you need to engage an experienced Maryland criminal attorney who can advise you on what actions you should–and should not–take when you are facing serious charges. Contact Henault & Sysko, Chartered, today if you need to speak with an attorney right away.