Individuals recently arrested or indicted for criminal offenses often panic. They may go into damage-control mode, which may include going online to delete many of their recent posts or comments on social media.
People worry that tongue-in-cheek jokes or crass conversations with their friends might give investigators or jurors the wrong impression. While social media damage control may seem like a logical response to pending criminal charges, deleting posts can actually worsen the situation for a person accused of a criminal offense.
The state may discover the deletion
Anything shared on social media platforms or other popular websites is part of the internet permanently. Even when people delete specific content or mark their posts as private, the company hosting the app or website still has a digital record of that content.
If the state subpoenas the platform, any deleted posts, as well as the record of the attempt to delete them, are likely to show up in the discovery materials. Prosecutors could then point to that attempt to delete content as evidence that a defendant felt guilty or had “consciousness of guilt.” They could even refer to it as the spoliation of evidence, which could potentially lead to secondary criminal accusations.
How to handle social media when facing charges
As previously noted, nothing deleted from social media actually disappears, and the attempt to remove content can look like an admission of guilt or an attempt to interfere in a criminal investigation. It is often beneficial for criminal defendants to deactivate their social media accounts as soon as possible instead of deleting individual posts.
Investigators and prosecutors may not go so far as to request records from social media companies if a defendant does not have a publicly-available profile. Even if they do secure social media records, the choice to deactivate is not the same as the removal of posts. Avoiding any additional social media interactions, especially commentary about the arrest or pending charges, is of the utmost importance for the protection of criminal defendants, so deactivation is a common practice.
Those facing charges and feeling unsure of how to protect themselves may need to discuss their next moves with a criminal defense attorney. Securing legal insight before acting can help defendants limit the likelihood of mistakes that may initially seem beneficial, but might actually worsen their legal circumstances.