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Can Facebook and other social media sites be used as evidence?

Sacramento, CA |

Can a person's comments on social media sites be used as evidence in a criminal case (e.g. for sexual harassment)?

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Attorney answers 4




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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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.

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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.