Everything You “Post” Can and Will Be Used Against You!
Most people are familiar with the criminal ‘Miranda Warning’; “Anything you say can and will be used against you…”. It is often employed as a punctuation mark to convey to the viewer of a TV show or movie that the bad guy has been nailed. In today’s constantly evolving technological world, that warning now stretches well beyond the spoken word.
A Google search found that at the start of the year Facebook reported having 1.9 billion users. Instagram had 880 million, LinkedIn had 500 million and Twitter had 330 million users. That equates to a whole lot of content and over-sharing! The blabbering content and blistering hot air that people post may contain statements that come back to bite the declarant and make them wish they never posted in the first place.
Whether it’s a divorce proceeding, a business dispute or a criminal trial, posts to social networking sites such as Facebook, Twitter, Instagram, GroupMe, etc., are routinely being used as substantive evidence in courtrooms across the country. Everyone needs to be extremely careful with what they put on these sites because once posted it is there forever and with the right resources can be retrieved even after one thinks it has been deleted.
Social media posts have been used for impeachment material in death-penalty cases to secure criminal convictions; divorce proceedings to gain an upper-hand and used now will more frequently be utilized in civil lawsuits as well. Most often any statement made by an adversary will be admissible as a statement by a party-opponent; therefore, traditional hearsay rules are obviated. However, in the case of photographs, posts by third-parties, etc. traditional hearsay and trial authentication rules apply.
Examples of How Social Media has Influenced Personal Injury Cases
This month the NYS Court of Appeals ruled in Forman v. Henkin (February 2018), that Facebook posts by a plaintiff in a personal injury lawsuit are discoverable. In the ruling, the court held that even posts deemed private or those that had been removed or on a deactivated site were discoverable and had to be turned over. The Court’s holding did allow for a carve-out exception for posts involving nudity or romance if revealing them would lead to embarrassment for the poster.
In the case recently decided by the NY high court, the plaintiff filed a personal injury lawsuit alleging that she once had a very active lifestyle and posted frequently, but due to the accident she suffered from anxiety, intense migraines and became a recluse who was incapable of communicating via texts or postings to social media. The court in applying their prior rulings from criminal cases to the civil sector held that all of her social media postings before and after the accident were to be provided to the defendant so they could assess her credibility and the veracity of her allegations. The Court’s rationale is premised on the notion that if you are going to put your physical or mental well being at issue by filing a lawsuit, your social media activity is relevant to challenge the veracity of your lawsuit allegations.
So, the takeaway is …be careful, be very careful what you post because it can and now most certainly will be used against you if not in a court of law somewhere, somehow, someday by someone!
Contact Our Queens Personal Injury Attorneys at Sullivan & Galleshaw for a Free Consultation
Keith Sullivan is a partner with Sullivan & Galleshaw, LLP and an adjunct law professor at Pace University School of Law and a lecturer for the NYS bar exam. He is frequently seen providing legal analysis on various national and local networks such as FOX News, CNN, and MSNBC. You can e-mail your questions for Keith to SullivansCourt@gmail.com.
Sullivan’s Court provides general legal information only, is not intended as legal advice and does not create an attorney-client relationship.