If Someone Identifies You on Social Media, Is It Admissible in Court?

In some criminal cases, disputes arise over the admissibility of an out-of-court identification that a witness made using social media photos or videos of the defendant. The Wisconsin Supreme Court recently clarified the standards trial courts should use in ruling on the admissibility of such identifications. 

The Rise of Social Media in Criminal Prosecutions

Traditionally, law enforcement officers have relied on "mugshot" photos of criminal suspects to show to eyewitnesses to identify the perpetrator of a crime under investigation. However, investigators and prosecutors have increasingly relied on social media photos of criminal suspects as part of identification efforts. Officers can have eyewitnesses identify criminal suspects through a photo array, where police show a witness multiple photographs of similar-looking individuals and ask if the witness can identify any of the photos as the perpetrator. Alternatively, officers may use a single-photo identification method, showing a witness a single photograph of an individual and asking them if the person in the photo committed the crime. Both identification methods suffer from inherent suggestibility. However, other circumstances can enhance the reliability of a witness's identification, such as the witness's opportunity to view the suspect, the time between the crime and the identification, and the witness's certainty in their identification.

Protecting Your Privacy on Social Media

Today, law enforcement frequently uses social media photos of criminal suspects as part of their investigation and subsequent prosecution. Officers may use social media photos or videos to facilitate eyewitness identification. Prosecutors might submit a defendant’s social media photos or videos into evidence at trial, such as a photo of the defendant holding the same model of firearm used in a crime.

People can take steps to protect their privacy on social media, including using each platform's privacy settings to limit access to their profile and posts to friends and family. Individuals should also exercise caution when receiving connection requests from people they do not know, as that request may have come from an investigator trying to access their profile.

The Admissibility of a Social Media Identification

The Wisconsin Supreme Court recently decided a case involving the admissibility of witness identification testimony based on an out-of-court identification using a single photo of the defendant from Facebook. The court affirmed the long-standing principle that a trial court can admit an identification made from a single social media photograph if the facts support the reliability of the identification. While the supreme court acknowledged the suggestibility of using a single photograph, social media photos tend to be less suggestive than mugshots, which weighs in favor of admitting into evidence an identification made using a social media photo.

Contact a Criminal Defense Lawyer Today

When facing a criminal prosecution where identity has become one of the critical issues, you need experienced legal counsel to protect your rights against improper identification or inadmissible evidence. Call Cohen Law Offices today at (715) 514-5051 for a confidential case evaluation to discuss how an Eau Claire criminal defense attorney can help you prepare a compelling defense strategy.