In Indiana, and in virtually all other courts across the United States, attorneys and judges have “wrestled” with evidentiary issues surrounding social media (is it admissible?) in all sorts of ways in civil and criminal cases: How do you authenticate something is actually real (versus fabricated) in cyberspace, never existing in a tangible form? Many of these questions have been addressed by trial and appellate courts. Now Facebook posts are routinely authenticated and used in civil and criminal courts; some courts have even allowed a spouse to a divorce to serve divorce papers by Facebook.
Unlike most other forms of social media, however, Snapchat has tremendous appeal in the digital era because the “snap”, a photo or story, disappears in a few seconds—it does not (in theory) sit on a computer server forever. It leaves no digital fingerprint or does it? Most everyone knows it is possible to quickly take a screenshot and save the “snap”. In criminal law where the rules of evidence are stricter and the burden of proof higher—beyond a reasonable doubt—the Indiana Court of Appeals decided a key case yesterday, July 24, 2018, that shows nothing in the digital realm keeps you from being accountable for use in the courtroom.1 This blog post addresses this case and its broader implications.
In this matter, a child was convinced by the defendant to send nude photos and he sent some of himself, “snaps” that were saved by making a screenshot. In this key case, the defendant argued at trial and on appeal that he could not be found guilty of receiving child pornography because he could not “possess” the pornography (the nude images of the minor) because the image automatically disappears. This is a legally compelling argument because, with the potential for a deprivation of freedom (you can be sent to prison), penal statutes are strictly construed against the State (or for a defendant and against conviction). If the criminal statute does not specifically prohibit the action, you cannot be convicted. However, the Court of Appeals affirmed the conviction because, with careful legal analysis, it is clear this (or any other) defendant could control the images (screenshot) them before they disappeared. Thus, he could ultimately possess “snaps” that were captured by screenshot; and his conviction was affirmed.
Thus, as with tangible evidence (documents and other things you can touch), the courts, even in criminal cases, are not stymied by obvious technical, semantic arguments that were not contemplated when criminal laws were made in the former “paper” world. What you say and do in cyberspace can and will be used against you. While there is no doubt that some similar arguments will prevail in the future in criminal cases and cause a defendant to be acquitted, there are key lessons for the rest of us in the civil world, such as divorce since it is the largest segment of civil litigation—if you put it in cyberspace and it is relevant, it may be authenticated and, if relevant, used against you in all sorts of civil cases. Take the parent who “snaps” a photo of themselves smoking a joint and sends it to someone else who is able to take a screenshot and save it. Since the rules of evidence are more lax and the burden of proof lower (like a preponderance of the evidence), this may decide who gets or loses custody in a divorce case.
Ultimately, the cyber world and its digital footprint are increasingly becoming the evidentiary norm in criminal and civil cases. People go to jail or lose their kids or case because of cyberactivity. Is this your case? There are two (2) takeaways from this blog post. The first is do not post or act in the digital world any differently than you would do in real life. If you have not, be warned. Secondly, if you have left digital evidence in the cyber world, this is a conversation to have with your counsel, as there are still numerous situations where “digital” evidence may be excluded because it is not able to be authenticated (shown to be real or accurate) or relevant. At a minimum, you can be prepared.
Ultimately, the online world is providing as much evidence as the real world in civil and criminal and civil cases. Dixon & Moseley, P.C. advocates handle criminal and civil cases throughout the state at the trial and appellate court level. This blog post is written for general educational purposes only and is not a solicitation for services or intended as legal advice. It is an advertisement.
- Keith v. State, 33 A01-1712-CR-2981.
