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Seeking social media evidence

Information on social media sites, such as Facebook or Instagram, can become an important part of Michigan criminal charges. Prosecutors can obtain search warrants, forcing disclosure of evidence stored on servers from a social media company.

Criminal defendants do not have this option and face obstacles imposed by the Stored Communications Act (SCA). The SCA prohibits social media companies from divulging user information to third parties, even if it is requested by a defense attorney's subpoena.

If the social media user does not consent to disclosure, the defendant must obtain a search warrant from the government. The prosecution may not be forced to seek this warrant.

Social media evidence might be significant for the criminal defense. It may contain a conversation between the defendant and the accuser, photographs or video or other evidence that may be favorable to the defendant.

A 2008 civil federal district court case in Michigan, however, was cited in a California appellate court case compelling disclosure of social media postings. The trial court denied the defendant's request for disclosure of information held Facebook concerning the postings of a juror accused of prejudice in the defendant's trial. But, the court compelled the juror to turn over their postings during the trial for the court's review.

This case concerned allegations that Detroit did not disclose information in pre-trial discovery. The court ordered the city to give the necessary approval to a third-party vendor for social media information protected by the SCA. The court treated the city as any other litigant, which did not want to disclose documents that it held or controlled because if this information was relevant, it must be disclosed.

Citing this Michigan case, the California appellate court upheld the trial court and ruled that the juror accused of misconduct could obtain information from the social media company. A court could compel this juror to turn over these postings though forced consent to Facebook.

This case was probably unique. The court exercised it power of assuring a fair trial by investigating possible juror misconduct. The result may be different where the defense tries to seek SCA-protected evidence from parties such as a social media company or a crime victim.

Like social media technology or use, the law on this issue may be evolving. An attorney may help defendants obtain crucial evidence.

Source: California Lawyer, "Using social media as evidence in a criminal defense case," Robert Hill, Aug. 30, 2017

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