Confessing on Facebook: Social Media Self-Incrimination

Most people know that it’s easy to get in trouble on social media. Maybe you forgot to set your Facebook post to private, or perhaps you bad-mouthed your employer and were suspended. While these kind of indiscretions can be painful, there is an entirely worse way to get yourself in trouble on the internet; self-incrimination for criminal activity. There are any number of extreme examples - like the drug ring in New York that Police couldn’t crack until the group set up a Facebook page under the gang’s name and posted all of their nicknames, real names, and businesses addresses online for everyone to see -- but of more concern to most of you are the simple things you can do to get yourself into legal trouble; often without even realizing you’ve given the police anything of value.

Direct Admissions

The most direct route to legal trouble through social media is the obviously incriminating admission. It should go without saying, but posting something on your social media account stating that you committed, were involved in, knew about, supported, requested, saw, had friends involved with, or were in any way connected to illegal activity can absolutely get you in trouble; and, in case you were wondering, it’s not just text posts that can earn you a police visit. Pictures, videos, particularly videos’, and even likes or faves can all implicate you in a crime.

Associations and Affiliations

Even if you don’t directly admit your role in illegal activity, your friends might. If you are social-media connected with someone, that association can draw you into a criminal investigation; either under some form of criminal association charge (gang charge) or as a potential witness. It is even possible to be convicted for perjury if you tell police or a court that you don’t know someone and it later comes out that you are friends with them on a social account.

The same warnings hold true for possessions and property. Pictures showing you in, near, or in possession of suspect property or items can be just as damning as a direct admission. That picture of you with the stolen car, or of you standing outside the restaurant that was just busted for it’s grow operation can implicate you as a suspect. In fact, sometimes all police need in order to obtain a search warrant for your building is a picture of you hanging out at a suspect location.

Location

Perhaps the most subtle way of incriminating yourself on social media is through the location awareness features of most networks. You might have a great alibi who swears up and down that you were nowhere near the warehouse on the 2nd that night, but if you “checked into” the Starbucks down the street at 9:00 pm, good luck. What’s worse, you might not even know that you’re phone is tracking your location. Some apps have auto check-in features. Google Maps, for example, can be set to share your location with friends automatically. These examples are just the tip of the iceberg. The rapidly evolving nature of social media technology means that you may not even know exactly what your phone or other device is revealing about your location.

But only my friends see my posts, right?

Think your social media activity is private; too obscure for police to notice, protected by your constitutional rights. It might be, but I wouldn’t count on it. There are many ways for investigators to get the information you post. Police might be able to obtain a search warrant to collect the records directly from your social media provider, internet provider, cell service provider, etc. Even without a warrant, they can often simply friend you, under an alias of course, or perhaps just friend one of your friends; and thereby get what they want to know. Maybe your friend caves under interrogation and turns over their account to police who then have access to all of your posts. The list goes on almost forever. The point is, there is absolutely no guarantee that what you post online will remain safe or confidential; in fact, you’re virtually guaranteed that it won’t.

That isn’t a crime…

Even if you don’t think you’ve done anything wrong, be careful about what you say online. In one situation, a girl posted a comment on Twitter about how smashed she was -- not illegal in and of itself -- and later had to face that post in court when she was arrested for a drunk driving accident that occurred less than two hours after she made her drunken post. In other cases, people post things that, while not directly incriminating, may give police enough for a warrant to search the rest of your computer, home, or other property; during which search more substantive incriminating evidence may turn up.

It is always important to watch what you say; especially when your words, photos, videos, and locations may be forever recorded in the digital world.

Legal Rights After An Arrest

Post Arrest Rights

Two weeks ago I wrote about some of the rights suspects have leading up to, and during, an arrest. Today I am going to continue that train of thought by discussing some important suspect rights after an arrest. No one likes getting arrested, that much is clear, but it does happen. In order to preserve your legal rights, rights often guaranteed by the Constitution itself, it is important that you to understand a little more about the arrest process.

Not a conviction

First and foremost, you need to clearly understand that an arrest does not equal a conviction. In fact, an arrest really does not say much of anything about your ultimate guilt, your chances in court, or even about what the police know or don’t know. Plenty of totally innocent people get arrested and even charged. That is why we have courts; to sort out the legitimate police action from the mistakes.

This point bears repeating because there is a lot of confusion surrounding this issue, especially as relates to what the police may or may not know about you or what you allegedly did. An arrest does not equal a conviction. You have still not been convicted of a crime until a judge or jury decides beyond a reasonable doubt, the highest burden in the law, that you are guilty.

Everything you say can be used against you…

I hear too many stories about suspects who, once arrested, start discussing every possible law that they may, or may not, have violated. Do not be one of them. You will get a chance to tell your side of the story. Wait for a lawyer to assist you. This is usually good advice before an arrest but it is absolutely critical after an arrest. Even if you feel sure that you committed a crime, you may be legally innocent or have a legitimate defense. Even if a law was violated, police are absolutely required to follow certain procedures during their investigation and their failure to do so may be fatal to their case against you.

Confessions

After the arresting process is complete and you have been brought in officers are likely to start asking questions. Confessions are usually a very bad idea. Unless you have spoken to a lawyer first, do not give one. When they read you your rights, the part about how “anything you say can be used against you in a court of law…” that’s true. A confession may be misconstrued or based in part by coercion. Do not feel obligated to cooperate merely because you are vulnerable. Request that an attorney be present, in the event you want to confess.

It does not matter how much they ask, you should not tell authorities anything without speaking to an attorney first. Do not take a deal to “make their day easier”, or to “be a good guy.” Without an attorney there to represent your interests, you have no way of knowing when the authorities are offering you a legitimate legal deal.

And it is not just the cops. There are lots of cases on the books when investigators have put other people up to the task, ranging from your cell mate, to a friend. If you are arrested or are a suspect in police custody, it is best that you keep quiet. Allow an attorney to represent your best interests.

Just say NO

Sometimes it is not enough to keep quiet. If investigators are persistent, and they have been in the past, clearly, firmly and politely tell them that you do not want to answer questions without an attorney present to represent you. By law, they will stop asking at that point. If they continue to ask questions, remember to politely and unequivocally state that you do not want to speak without the representation of an attorney.

During most investigations, you have a general right to end the questioning. This might not apply in the field when officers are actively trying to get a dangerous situation under control, but once you are back at the station in complete custody, they really should stop asking if you say you are done. You may have to be really clear about your desire to be done talking, but that just means that you cannot be ambiguous in your communications. Even if investigators ignore your requests, a good attorney may be able to get a subsequent confession excluded during your trial, as long as you did your best to clearly end the questioning.

Ask for an attorney

You have a right to speak with an attorney. In fact, you have this right regardless of your ability to pay for an attorney. The authorities must provide you with access to a qualified attorney if you ask for one. It might not happen right away, but keep patient and keep asking. They do have to get you an attorney and give you the opportunity to talk with an attorney in private.

However, your right to an attorney is not self-executing. You must actually and unambiguously express your desire to speak to an attorney. It is usually a good idea to do so in conjunction with your refusal to answer questions. Just say “I want to speak to an attorney and I won’t answer any more questions at this time.”

What comes next?

After an arrest, authorities have a limited amount of time in which to either press formal charges or release you. The specific time limits can depend on the circumstances but it is usually not more than a couple of days. This means that within a day or two, you will probably be brought before a judge for the first of several hearings. At this first hearing they do not have to prove much, but they do have to give an explanation of why they arrested you and what they think you may have done.

Even at this stage, it is important to watch what you say. If you have not yet spoken with an attorney, let the judge know. Please, whatever you do, be polite to the judge. You will absolutely make things worse for yourself if you start disrespecting the court. Do what the judge asks at all times. Sit quietly, do not interrupt, and answer questions if you can. Judges are not your enemy and their impartiality serves the interest of justice.

By this point, you really should have been given a chance to speak with an attorney. From there, you'll have to work with your attorney to figure out what to do next.

Get Legal Help

I have kept this discussion colloquial in order to avoid complicating an already difficult subject, which means that what I have written here only covers a few basics. Talk to a qualified attorney for specific legal advice. I am here to help if you have further questions. Contact me immediately to avoid jeopardizing your legal rights.