Social media has literally changed the face of the world and how we interact—but nothing compares to Facebook with nearly 2 billion users globally and 210 million users in the United States (most of the population). Instead of real, in-person conversations, many people have substituted Facebooking (and many other social media tools). As you might guess, Facebook has worked its way into courtrooms in two key ways.
First, there is a prolific amount of posts and related material on high-profile crimes and divorce—in some respects this is a new hybrid form of tabloid and serious news reporting. Ultimately, there should be a balance of use of Facebook and other social media by comparing it with more traditional reference of news tools. No source is infallible. On the other hand, social media has captured some stories that traditional media never would report for lack of access, real-time access, and/or remoteness. This is largely accepted by everyone in the legal and other professional communities.
Second, and the central focus of topical coverage of this blog post is how Facebook posts, pages, and printouts can and are used in civil, criminal and juvenile matters. Literally, these Facebook materials may make or break a case. In a recent case, the Indiana Court of Appeals set forth the framework by which Facebook evidence may be admitted under the Indiana Rules of Evidence which were designed around more traditional paper documents.
However, Facebook materials do not automatically get admitted into the evidence. Instead, the proponent (person or attorney offering the evidence) must provide sufficient information to the Court for it to find the item is what it claims to be. Facebook pages and print offs come in a variety of formats and with multitudes of information contained in such. Thus, whoever offers this evidence, must establish a reasonable probability the Facebook material is what it is claimed to be. Absolute proof of authenticity is not required.
So the takeaway is in our “information-open” society, social media can make a case or defeat it. This elaboration of how Facebook materials may be admitted into evidence also shows how the Courts constantly adapt to new sources of information to ensure justice is equally served and technical changes in the ways information is transmitted does not thwart this legal objective. So if you post it, you own it!
Thus, it is important to share with your counsel in every context what might help or undermine your legal objective and case theme that is on social media, especially Facebook. This blog post was written by attorneys at Dixon & Moseley, P.C. who regularly use social media in trials. This blog is written for informational purposes only and is not intended to be legal advice or a solicitation for legal services. It is an advertisement.