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Expert Advice

Sep. 7, 2017

Using Social Media as Evidence in a Criminal Defense Case

The Internet is a treasure trove of information, and some of it can be vital in a criminal case. But can you get your hands on it? Courts must balance the rights of the accused against the privacy of social media users.

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Every year, individuals place more and more of their private information onto social media sites such as Facebook and Instagram. As you might expect, that very information frequently becomes relevant in a criminal prosecution as evidence of either guilt or innocence. The relevant evidence might be a conversation between an accuser and an accused, or even photos or video of the alleged crime taking place.

For the government, obtaining such evidence is simple—the prosecution can easily obtain a search warrant compelling disclosure of the information from the third party social media company. For a criminal defendant, however, the story is much different.


A criminal defendant seeking disclosure of information stored on the servers of social media sites faces an almost insurmountable barrier: the federal Stored Communications Act (SCA, 8 U.S.C. §­§ 2701, et seq.). The SCA establishes guidelines for companies such as Facebook and Instagram which prohibit them from “divulging” their user’s information to third parties, even in response to a subpoena by a defense attorney, without permission of the content’s owner. See (18 U.S.C. § 2702(a)(1)-(2).) In fact, in the absence of the user’s consent (see 18 U.S.C. § 2702(b)(3)), the only mechanism for obtaining the information is a search warrant from a government entity; and defendants have no ability to compel the prosecution to seek a warrant if they do not wish to do so.


Several challenges to the SCA have been litigated in California and federal courts. In Facebook, Inc. v. Superior Court, 192 Cal.Rptr.3d 443 (2015), several criminal defendants argued that the SCA, as applied to them, was unconstitutional as it denied them the right to due process and to confront the witnesses against them, among others. The SCA, they argued, denies criminal defendants pretrial access to potentially crucial exculpatory evidence. The court of appeal disagreed, rejecting each of the defendants’ constitutional claims. Id. at 451. The court first reiterated that criminal defendants possess no general right to pretrial discovery. Id. Addressing the due process claim, the court stated that the familiar Brady line of cases, based in due process, similarly offer no support as they simply “restrict the prosecution’s ability to suppress evidence rather than to provide the accused a right to criminal discovery.” Id. at 456, quoting People v. Morrison, 34 Cal.4th 698, 715 (2004)(emphasis added).

The defendants’ Confrontation Clause claim was similarly rejected, although the court left open the possibility that “at trial, a trial court might be called on to balance a defendant’s need for cross-examination and the policies supporting a statutory or constitutional privilege…” (Id. at 453, citing People v. Hammon, 15 Cal.4th 1117, 1127 (1997).

However, as to pretrial disclosure, critical for adequate preparation of a defense, the court found no Confrontation Clause violation. Id. at 454. The Facebook decision is currently under review at the California Supreme Court where it is docketed as No. S230051.


Another court of appeal decision gives criminal defendants some hope of obtaining social media information from third parties. In Juror Number One v. Superior Court, 206 Cal.App.4th 854 (2012), a juror suspected of misconduct was ordered by the court to grant the consent required under the SCA for disclosure of his Facebook postings. During proceedings challenging a verdict, the trial judge received information that the juror in question had been posting about the case under deliberation in violation of the court’s instructions. Counsel for the real party in interest, who suspected that the jury misconduct had resulted in prejudice, subpoenaed Juror Number One’s postings from Facebook. Based on the SCA, Facebook successfully moved to quash the subpoena. Counsel next tried to subpoena Juror Number One, who also successfully moved to quash. However, the trial court “also issued an order requiring Juror Number One to turn over to the court for in camera review all of his Facebook postings made during trial.” Id. at 858-859. Juror Number One appealed.

In upholding the trial court’s compelled consent order, the court of appeal cited Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008), a civil case involving discovery violations by a municipality. There, the defendant city was ordered to provide the necessary consent to its third-party vendor for disclosure of otherwise SCA-protected materials. 252 F.R.D. at 363. While the city did not actually possess the information sought, it had the power to obtain it. The federal court in Flagg found that the city’s “disinclination to exercise this control is immaterial, just as it is immaterial whether a party might prefer not to produce documents in its possession or custody.” (Id.)

The California appellate panel in Juror Number One likewise reasoned that the juror suspected of misconduct had constructive possession of his social media information and could therefore be required to provide his postings to the court via compelled consent to Facebook. Juror Number One, supra, at 863-864.

The Juror Number One court’s approach was novel, and has not been successfully employed in the context of a criminal defendant seeking disclosure of social media information from witnesses or victims. It is important to remember that the court in Juror Number One was acting pursuant to its own inherent power to ensure the fairness of the proceedings by investigating jury misconduct. It is doubtful whether the balancing of interests would play out the same in the context of a criminal defendant’s attempt to obtain SCA-protected materials from a third-party witness, much less an alleged crime victim.


Unless and until a criminal defendant succeeds with a challenge based on Juror Number One’s compelled consent rationale, or the California Supreme Court is persuaded to overrule the court of appeal in the Facebook case currently under review, the plain language of the SCA leaves a criminal defendant’s pretrial ability to obtain potentially critical exculpatory social media information in the sole discretion of the government.

Robert Hill is an associate attorney at Eisner Gorin LLP, a boutique criminal defense firm in Los Angeles. Mr. Hill wishes to thank firm partners Alan Eisner and Dmitry Gorin, both state-certified specialists in criminal law, for their contributions to this article.


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