Social Media as Evidence at Trial


Donald J. Trump is currently the defendant in a civil case involving allegations of sexual assault.  Perhaps not surprisingly, he has been tweeting his thoughts about the trial.   The judge has warned him about doing so and has also admonished Trump’s lawyer about “having a conversation with [his] client” and the implications of obstruction of justice statutes.   After reading the news about this issue, we thought it might be a good time to write about how social media use can affect your case and a trial.   There are lots of questions that often come about the intersection of these two issues including: (1) Is social media hearsay?  (2) Can social media be used as evidence/ Can social media be used in court?  (3) Can lawyers look at social media during a case or at trial?   Let’s take each one of these questions separately.

  1. Is social media hearsay?

We hate to get all lawyerly on you but this issue is complicated and so we must.  The legal definition of hearsay is as an out-of-court statement offered into evidence to prove the truth of the matter asserted.  For weeks, students in evidence classes in law school will learn about hearsay but we are going to try and break it down quickly just in the context of social media.   For example, if Bob was injured in a car wreck, his lawyer could not introduce a social media post from Bob where he posted that he had been injured in a car accident.  That statement on social media was not made in court and it is offered to prove that Bob was in fact hurt in a car wreck.  Now assume that Bob had filed a lawsuit claiming he had been hurt in a car accident and could not walk or engage in athletic activities because of injuries to his leg.   If the lawyer on the other side of the case found a social media post from Bob where he said he went skiing the weekend before the trial, then that post could be admitted as evidence because it is an “admission of a party-opponent”.   In other words, it proves the Bob is not telling the truth.  In his social media post Bob admitted not only could he walk but he could ski.  Admissions of a party-opponent are not considered hearsay.

In addition, there are a lot of other exceptions to the hearsay rule.  In other words, the statement is hearsay, but it meets an exception and therefore is admissible into evidence.  For example, immediately after the accident someone was live streaming on Facebook and the person filming captured Bob screaming in pain and crying that his leg was hurt.   That social media post could be admissible even though it is an out-of-court statement by Bob that he was hurt, and that is exactly what he is trying to prove in court.   It likely would fall within the “excited utterance” exception to the hearsay rule.  It was immediately after the accident when people are normally very shook-up emotionally and it captures Bob very upset and crying while stating his leg was hurt.

In summary, social media posts may or may not be hearsay or they may fall within one of the exceptions to the evidence rules that prohibit the introduction of hearsay in a trial.

  1. Can social media be used as evidence/Can social media be used in court?

Yes, as we just saw above, social media can be used as evidence.  In fact, social media posts can often make or break a case.  If you are involved in litigation, it is very dangerous to post about it on social media.  A skilled attorney can often do incredible damage using a social media post.

  1. Can lawyers look at social media during a case or at trial?

Lawyers can look at your social media posts (assuming they are public) during a case or a trial, and they routinely do it.  If a lawsuit is filed, the lawyers might have access to your posts even if they are not public.  During the “discovery” phase of a case, which is basically just both sides investigating the case, you might have to turn over your posts.  Attorneys are looking for their opponents to say something or do something (in a photo or video) in contradiction to what they have asserted as part of the lawsuit.

During trial, the judge will almost always warn jurors that they are not permitted to do any independent research about the case.  In other words, they should not look up news reports, check social media, talk to witnesses, etc.   So, the jury is prohibited from doing these types of things, but the lawyers are allowed to do so and often will.

Posting anything on social media when you are involved in litigation is a high-risk activity.  In addition to damaging your case, it may also harm your credibility with the court and result in additional legal problems like obstruction of justice or contempt of court.  For these reasons, if you have a serious case, you should always consult the advice of a lawyer.  If your case involves a serious injury, we would be happy to talk to you in a free consultation.  Our award-winning attorneys handle all accident cases on a contingency fee basis, so we only get paid if we win.

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