Can a person's comments on social media sites be used as evidence in a criminal case (e.g. for sexual harassment)?
Administrative Law Lawyer
Assuming that the standards for admissibility of evidence set forth in the California Evidence Code as to relevance, authentication, etc. are met, FB posts may be admitted as evidence. The authentication and foundational requirements are often significant admissibility hurdles.
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Employment / Labor Attorney
Yes, they can. Almost anything from any source has the potential to end up as evidence. Careless comments on social media sites is so widespread now that I have to review social media participation by potential clients before I can agree to accept a case. And simply deleting posts will not remove them from discovery, due to the many retrieval options available.
If you are considering litigation, you MUST tell your attorney or any potential attorney about your social media activity. Do not assume it will stay hidden. Your attorney may be able to minimize the impact if he or she has advance knowledge of what you wrote. However, if your attorney is taken by surprise by information the other side has, it is often too late.
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
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Employment / Labor Attorney
Yes, and employers are increasingly checking Facebook to see, for example, if an employee that called in sick is out on the beach posting pictures to Facebook. Electronic media, in general, is a classic place to search for evidence in legal cases.
Legal disclaimer: This response is meant to be information only and should not be considered to be legal advice. This information is not meant and should not be construed to be the formation of an attorney client relationship. Employment laws may vary by state and you should contact an attorney in your state to see if a state law may be applicable to your situation.
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