5 Social Media Cautions from a Las Vegas Criminal Defense Attorney
When you visit Las Vegas for a lively good time, you should cut loose and enjoy yourself — that’s why you’re here, after all. But you should be careful about posting your adventures on social media. If you get a little too carried away, your posts might get you into some real trouble. In addition, if you are arrested and charged with a criminal offense in Las Vegas, you should avoid posting on social media about your case.
People who post on social media (which includes the vast majority of the U.S. population) often don’t stop to think that while they are having fun posting photos and anecdotes, those posts can get them into legal trouble. If you use social media, you need to understand the role of social media in the justice system and take precautions to avoid becoming a viral news story or someone who inadvertently undermines his or her own criminal or civil case.
In these five social media cautions, criminal defense attorney Joseph Gersten offers advice for Las Vegas visitors (and everyone else) about posting to social media. These tips apply regardless of where you are — and regardless of whether you visit Las Vegas — but they are particularly important when you are in Las Vegas partying around the clock and may be tempted to document some of your experiences. They are also important if you are facing criminal charges in Las Vegas or anywhere else.
Caution # 1:
Keep in mind that police and law enforcement agencies use social media as an investigative tool.
The internet is replete with examples of people who were charged with a crime because social media posts, individuals facing criminal charges who undermined their own cases by posting on social media, and people who lost civil cases because of evidence they posted on social media. The potential negative impact of their posts never occurred to any of them until it was too late.
One popular example of party posting gone wrong occurred a few years ago in Montreal, Canada. A group of young partygoers participated in the Montreal Metro Drinking Marathon, which involved drinking a beer at every station on the 30-stop Metro line.
The revelers documented their journey through 18 Metro stops on social media. Posted photos showed some of the group chugging beer on trains and urinating at stations — both of which violate city ordinances — as well as committing other criminal acts.
As the photos spread on social media and into the news, police launched an investigation and began to identify and charge the participants. Without the group's own published photos, making the case would have been much more difficult for the police — if they could have made it at all.
While there are some legal issues presented by use of social media as evidence in a case, the fact is that once you post something on social media, it is out there for the world to see. The post itself may not even be part of the evidence in a case. It can lead the police (or lawyers, in a civil case) to uncover other evidence that can be used in court. Here's an example of how that can happen:
A couple years ago, an Oregon teen posted this statement on social media late one night:
Drivin drunk…classic ;) but to whoever’s vehicle I hit I am sorry. :P
Police were alerted to the post. They found debris matching the teen’s car at the scene of a hit-and-run accident in which two unoccupied cars were sideswiped. While his post was insufficient to prove alcohol-impaired driving, the teen was charged with two violations of Oregon’s law that applies to leaving the scene of an accident. Absent his post, police may never have identified him as the driver who hit the cars.
In the past few years, it’s become increasingly clear that law enforcement agencies gather information from social media. One survey reported that eighty percent (80%) of police departments use social media as an investigative tool.
In one reported case, police used Facebook to gather enough information to arrest and charge 71 people with gang-related offenses. In another reported case, a Florida man faced 142 felony counts after posting Instagram photos of himself with stolen items, guns, and cash.
The types of criminal cases in which social media has led to charges include serious crimes like drug trafficking, theft, burglary, sexual assault, and even murder. Lesser charges like ordinance and traffic violations have been filed because of social media posts as well.
In some cases, the act of posting on social media has been charged as a crime. Posts that make threats or amount to stalking or harassment and specific crimes against children can lead to criminal charges.
It’s highly unlikely that police sit in front of their computers all day scouring social media for evidence of crimes. However, if they receive a report that a social media post may include information that relates to criminal conduct, they will follow up and investigate thoroughly, including seeking out related social media posts.
The moral of this story is very clear: Oversharing online can get you arrested.
Caution # 2:
If you’re charged with a criminal offense, don’t post on social media at all.
If you’ve been charged with a criminal offense, you should stay off social media entirely. There are several different ways in which posting can hurt your case.
If you make statements about your case on social media, those statements can be used by prosecutors in the case against you. Don’t think for a minute that the police aren’t looking for your posts, because most likely they are. It may not even be your own posts that get you into trouble. Comments from your friends could compromise your case too. So can your comments on accounts other than your own.
Just as importantly, if you disclose on social media information about your case that is protected by the attorney-client privilege, a court could decide that you have waived the privilege. That result could be disastrous for your case and significantly impair your attorney’s ability to defend you.
The rule is simple: If there is a criminal charge pending against you, stay off social media entirely. If you have any doubts about whether you need to do that, discuss your social media activity with your attorney.
Caution # 3:
Resist the temptation to post jokes and parodies about conduct that could constitute a crime.
Posting a joke or parody about criminal conduct can backfire — with serious repercussions. Consider the case of a man in Hawaii who posted a video to LiveLeak titled Let's Go Driving & Drinking. It shows him drinking a beer while driving.
The video went viral. Then the police showed up on his doorstep, thanks to an anonymous tip. He was unsuccessful in convincing law enforcement officers that the video was a parody and that there was cream soda in the beer bottle. Police arrested him for consuming and possessing liquor while operating a vehicle and driving without a license. (His follow-up post claiming that his arrest diverted police from finding real criminals probably did not help his case.)
Posts meant to be jokes and parodies can easily be misconstrued not only by law enforcement, but also by others who see them and then report them to the police. Don’t joke on social media about something that could constitute a criminal offense. (You may not be laughing about it for very long if you do.)
Caution # 4:
Do not expect your post to remain confidential, even if you post in a “private” account.
Even if your social media account is “private,” you cannot assume that a post will not be publicly available. Once you post, the information will always be available somewhere. You should never expect that anything you post truly is private and confidential.
Federal law protects social media accounts to some extent. However, the law permits access to social media profiles, even when privacy settings are active, under certain circumstances involving law enforcement and governmental entities.
Deleting the information won’t even help. Even when you delete a post, it is still available somewhere in the cloud. It literally is not possible to “unpost” something from social media.
It’s important to remember that while the U.S. Constitution gives you the privilege against self-incrimination — and you can assert the privilege freely if you are arrested — the fifth amendment privilege will not protect you from incriminating statements or photos that you post on the internet. If your social media post implies conduct that constitutes a crime, or you show evidence of that conduct online, you cannot retract or protect the information by asserting your Constitutional privilege not to incriminate yourself after the fact.
Caution # 5:
Remember that social media posts can be used as evidence in civil cases as well as criminal cases.
Criminal charges are not the only type of legal matter that can be affected by social media posts. Civil cases like domestic relations and family law matters, personal injury cases, workers’ compensation cases, bankruptcy, employment matters, and even securities cases (such as insider trading) can be significantly impacted by information and photos posted on social media.
Many civil cases involving injury or disability claims have been derailed by a claimant's own posts or posts by other people. Domestic law disputes, including divorce and custody cases, also often include evidence gathered from social media posts of the parties or others with whom they associate.
There may be legal limitations to using evidence obtained from social media in some specific circumstances. However, as a general proposition, social media posts can be used as evidence in court in both criminal and civil cases.
Talk with an Experienced Las Vegas Criminal Defense Attorney
Las Vegas criminal defense attorney Joseph Gersten has extensive experience defending Las Vegas visitors and residents facing federal, state, and local criminal charges in Clark County. The Gersten Law Firm assists clients with personal injury and family law matters as well.