Illinois Rules of Evidence
Though this may surprise you, it is possible to use social media postings, comments, interactions, and even metadata gathered from social media postings. In Illinois, evidence rules are guided by the Illinois Rules of Evidence. According to these Rules, all evidence that is determined relevant is admissible. Therefore, before social media content can be used in a case, it must be deemed relevant. The Rules define relevance as "having any tendency to make the existence of any fact this of consequence to the determination of the action more probable or less probable than it would be without the evidence."
However, though technically admissible, some evidence may be excluded if its relevancy is outweighed by its potential to confuse the issues, mislead the jury, or causes unfair prejudice. It may also be excluded if it is likely to result in undue delays, be a waste of time, or contribute to a presentation of needless cumulative evidence.
These laws surrounding evidence are important to remember if you plan to use social media as evidence in your case. Just because you believe it to be relevant does not necessarily mean that the courts will deem it useful. Always consult with your attorney on the matter first.
What is Discovery?
When working on your case, your lawyers (and the opposing party's counsel) will go through a fact-finding process before the trial. The discovery process is when both sides must disclose facts and documents that are material to the case. When someone and their legal counsel believe that the opposing party's social media activity or profiles are material to the case, they will send a letter to the other side regarding the preservation of evidence.
Suppose you have been sent a letter of preservation of evidence for your social media accounts. In that case, you mustn't delete any posts or other content without first speaking with your lawyer. As social media has become commonplace for most of the population, the courts have been known to hand down sanctions when evidence is deleted or damaged. Social media evidence should be treated as seriously any other type of evidence.
During discovery, you and your attorney will have to consider what aspects of the opposing party's social media activity you want to request. It is not always a good strategy to request the entirety of someone's social media content. Instead, you want to carefully solicit what will be most relevant and pertinent to your case.
Should I Print Social Media Posts I Think Are Relevant?
Clients often ask this, and it seems like a logical move. However, printouts of social media postings and content are not always helpful when dealing with a court case. First of all, printouts do not have metadata. Metadata often provides crucial information about a posting – such as when, where, and who posted it. This can be vital when trying to prove someone wasn't where they said they were or where they should have been. For example, suppose you are trying to prove that your former partner was out partying instead of taking care of the children. In that case, metadata on a social media post can potentially prove your point.
Additionally, authentication of the printout becomes a problem. Just as metadata can give you information pertinent to your case, metadata can also be used to authenticate the evidence. Because social media pages can be manufactured or doctored, printouts are difficult, if not impossible, to authenticate, and therefore may not be admitted as evidence. If you believe that you have found relevant evidence on social media, speak to your lawyer right away about the best way to collect and preserve it for court.
For more detail on using social media postings in a court case, review the Illinois Bar Journal article on the topic here.
Should You Leave Social Media While Dealing with a Court Case?
No matter what, when you are dealing with a family court matter, such as a divorce or custody battle, you should be careful about the decisions you make and your behavior during the case. This is especially important when it comes to social media. It should be expected that the opposing party will seek to cast you in a negative light, and they may attempt to use and manipulate or miscast what you have posted on social media to do so.
This does not mean that you have to remove yourself completely from social media. However, some extra caution should be taken, and if you are worried about any of your existing content, you should speak with your attorney to discuss the issue.
Please keep reading for some of our tips on social media best practices.
Social Media Best Practices
Remember that in many ways, privacy on social media is a myth. Even if your account is not public, this does not mean that your friends or follows cannot and will not share content with people. It is also not unheard of for people to share private messages with others or make private posts public. When posting, a good rule of thumb is to ask yourself if you're okay with the information being made public or shared. If you are not, do not post it.
Many people treat social media like a diary or a journal, often posting the minutiae of their day. It is also common for people to vent on social media. For example, if you had a bad experience at a restaurant, you may make a status update complaining about the terrible service. These types of social media posts can pose a serious problem when going through a legal dispute with a former spouse or your parent's other child.
Posts venting about the opposing party or in which you badmouth the other person involved can be used against you in court. You should not make negative comments about the other person and never post in anger. You must also refrain from commenting on your case on social media at all.
In general, if you are on social media, your best bet is to remain careful and cautious when posting. You also never want to completely delete or clear your social media profiles in anticipation of your case, as this can lead to a charge of spoliation of evidence. If you are uncertain about your social media accounts and how they will affect your family court case, reach out to an experienced lawyer for guidance, like ours at the Law Offices of Jonathan Merel, P.C.
To learn more about how social media is used in divorce and custody cases, review our blog here.