By: Kara Powell
Now more than ever, some people tend to post their whole lives on social media. Not only “friends” are seeing these posts anymore – photos and messages on social media may end up in court. New York State Supreme Court Judge Michael Corriero explains his experience with social media as follows: a defense attorney for a weapons charge tells Judge Corriero “he’s never had a weapon in his life, judge.” Judge Corriero goes “on Facebook and [he] see[s] the kid there with two guns in each hand with a big smile on his face.”
Social Media and Discovery:
A trend has been emerging to allow discovery of social media posts and messages, both public and private. For example, the Florida Court of Appeals held both private and public photographs on Facebook are discoverable evidence in a civil suit. The court explained that “Facebook itself does not guarantee privacy. By creating a Facebook account, a user acknowledges that her personal information would be shared with others. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist.”
However, the Florida Court of Appeals distinguished the Nucci case from Root v. Balfour Beatty Construction, LLC. The Root court ordered a much broader production of evidence from Facebook. The requested material included videos, postings, photos, statuses, and likes, without any limitation. The Root court held the discovery request was “’overbroad’” and compelled “’the production of personal information . . . not relevant to’ the [party]’s claims.” In general, as long as the request is not overbroad, social media posts and messages are discoverable evidence.
Social Media and Bail Hearings:
Due to the increasing discoverability of social media posts and messages, such evidence can come in against defendants at every stage of the adjudication process. Even before trial, social media posts can affect defendants at bail hearings, determining whether a defendant is released or detained pending trial.
Federal judges must consider four factors set out in 18 U.S.C. § 3142(g) when determining whether a defendant should be released pending trial. A defendant’s Facebook posts are most relevant to the second factor: “the weight of the evidence against the person.” For instance, if the government presents evidence of a defendant’s social media posts with photographic proof of the defendant committing the alleged crime, this increases the weight of the evidence against the person. In United States v. Choate, the firearm with which the defendant was charged was “identical to one that [d]efendant can be seen holding in a video posted to Facebook.” The judge determined the weight of the evidence (the second factor under § 3142(g)) was substantial, and noted the “alarming content” of the defendant’s Facebook posts.
In addition, in United States v. Tolbert, the court concluded the weight of the evidence against the defendant was strong because the government introduced evidence of a Facebook message the defendant sent on the day of his arrest which included threats to the victims of his alleged crimes.
At any point in the adjudication process, past posts and messages from Facebook can come in against defendants. In sum, be careful what you post.
 Eames Yates, A Judge Explains How Facebook Can Be Used Against You in Court, Bus. Insider (May 14, 2017, 7:19 AM), https://www.businessinsider.com/judge-explains-how-facebook-social-media-photos-can-be-used-against-you-in-court-2017-5.
 See Heather Antoine, Judges Increasingly Allow Discovery of Private Facebook Content, IPWatchDog (Apr. 23, 2015), http://www.ipwatchdog.com/2015/04/23/judges-increasingly-allow-discovery-of-private-facebook-content/id=57060/.
 Nucci v. Target Corp., 162 So. 3d 146, 153–54 (Fla. Dist. Ct. App. 2015).
 Id. (internal quotations omitted).
 See Root v. Balfour Beatty Construction, LLC, 132 So. 3d 867 (Fla. 2d DCA 2014).
 See Id. at 869.
 See Id.
 Nucci v. Target Corp., 162 So. 3d 146, 154–55 (Fla. Dist. Ct. App. 2015) (citing Root v. Balfour Beatty Construction, LLC, 132 So. 3d 867, 868 (Fla. 2d DCA 2014)).
 18 U.S.C. § 3142(g)(2).
 See United States v. Choate, No. 18-30179, 2018 U.S. Dist. LEXIS 58869, at *4 (E.D. Mich. Apr. 6, 2018).
 United States v. Choate, No. 18-30179, 2018 U.S. Dist. LEXIS 58869, at *9 (E.D. Mich. Apr. 6, 2018).
 See United States v. Tolbert, No. 3:09-CR-56-TAV-HBG, 2017 U.S. Dist. LEXIS 198744, at *16-18 (E.D. Tenn. Dec. 4, 2017).