The Law Blog of Oklahoma

"Don't Talk About Your Case" Means Facebook, Too

Posted: Friday, November 14, 2014

Probably the first thing any defense lawyer will tell you is that you should never talk about your case with anyone except your attorney. Police have questions? The only thing you should tell them is that you want a lawyer. Nosy neighbors want to know what's going on at your house? Tell them you can't talk about it. DHS caseworkers want to ask you a few things? Refer them to your attorney. Don't talk to anyone about your case--not your boss, not your co-workers, not your fellow church members, and not your BFF since third grade. A Miranda warning isn't just a threat: anything you say can and will be used against you, and your friends and family in whom you confided can be subpoenaed to testify against you.

It should go without saying that if you shouldn't incriminate yourself by talking about your case, you definitely shouldn't publicly post information about your case or your criminal activity on Facebook. Unfortunately, many people fail to realize that the information they share on social media goes far beyond their innermost circles. A survey of local, state, and federal law enforcement officers showed that 80 percent of respondents used Facebook and other social media platforms to gain evidence of a crime.

Some cases are obvious--including those in which suspects post pictures of dead bodies online:

  • "Facebook killer" Derek Medina is charged with first degree murder after shooting his wife and posting pictures of her dead body on Facebook. He has pleaded not guilty and is saying he shot his wife in self-defense.
  • Nicole "Nikki" Kelly killed her 11-month-old son after she "reached her breaking point," and then posted pictures of the lifeless baby on Facebook, saying she felt "horrible" that she didn't protect him.
  • Chelsie Berry and Jared Prier are accused of failing to get help for a third friend as he suffered a drug overdose. Instead, they watched him die and then posed for pictures with his corpse before uploading the pictures to Facebook and then pushing him out of the car into a driveway.

Of course, posing with a body isn't the only way to get yourself in trouble. Most of the time, Facebook evidence seems more innocuous. Images of underage drinking, inappropriate comments to a minor, flashing gang signs, making threats, and posing with guns or cash can all provide evidence in a criminal case. news reporter Keith Ecker advises that often, what you post on Facebook before the opening of your case can be just as important as what you say after. In his article, "How Facebook Could Ruin Your Case," he writes:

  • Attorneys can mine your Facebook and Twitter accounts for evidence. 
  • Deleting your social media accounts during trial can result in penalties. 
  • Your lawyer should counsel you on how to use social media while your case is ongoing.

Your activities--even if they are not illegal--can be construed in such a way as to provide evidence of your character or your propensity to commit a certain act. If you are charged with DUI, Facebook or Instagram pictures of you lining up shots, doing a keg stand, or shotgunning a beer are not going to help you impress a judge or jury as a fine, upstanding citizen. Comments about how much you hate your family and how much you love to shop aren't going to cast you in a positive light if you are later accused of murdering them out of greed, as University of Oklahoma student Alan Hruby is accused of doing.

Before you post to Facebook, think about the possible ramifications it could have on any aspect of your life. If you are already accused of a crime, it may be too late to delete your comments, but you can keep from making things worse by keeping your mouth shut and keeping your fingers off the keyboard. Your right to silence applies to both face-to-face and online interactions.

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