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Social media: Prosecutors' new star witness

By Mackenzie Wilson
Published On: Feb 11 2013 08:20:01 PM CST
Updated On: Feb 11 2013 09:24:34 PM CST

NewsChannel 21's Mackenzie Wilson reports on the growing trend of social media being used as evidence in court cases and how you can protect yourself.

BEND, Ore. -

Cell phones are not allowed in the courtroom. But Deschutes County District Attorney Patrick Flaherty says you'd better believe everything you do on your cell phone or computer can be used against you in a court case.

"I've learned a lot about Facebook in the last couple of years," Flaherty said recently.

The social media giant, along with Twitter and even YouTube, have prompted many people to make their private lives more public than ever before.

"Once it's posted, it's public -- and then there are no rules," defense attorney Jacques DeKalb said.

An attorney for more than three decades, DeKalb remembers when phones were used as evidence in a much simpler way.

"The best you could get in the old days was that somebody may have called someone," he said.

Now, your computer and smart phone are gold mines for prosecutors -- and defense attorneys know it.

"You get a new case, and you just kind of hold your breath and wait for the DA to send you a stack of copies of what was on the phone, what was on the computer," DeKalb said.

Here's how lawyers get a hold of your information. According to family law, attorney Gordon Phillips, If your privacy settings are loose, it's as easy as this:

"Print the photo, print the comments -- it's that simple," Phillips said.

In a criminal case, prosecutors can get permission to use your information through a subpoena or warrant.

"Social media evidence is powerful, and it can be for both the defense or the state," Flaherty said.

'People are not going to be conscious (of the issue), and they're just going to keep posting and being stupid on Facebook.'
-- Defense attorney Jacques DeKalb

However, defense attorneys don't have the same luxury of forcing you to hand it over. DeKalb says, in most cases, it's not necessary.

"People are not going to be conscious (of the issues), and they're just going to keep posting and being stupid on Facebook," DeKalb said.

While the 140 characters you type on Twitter can be incredibly damning, a picture is worth a thousand words.

"It's harder to talk your way out of it -- you look at the photo and the person says, 'Well, I really wasn't smoking the bong' -- well, you're there and you posted it," Phillips said.

Phillips specializes in divorce cases. Time and again, he's used social media evidence to raise questions about a witness's character.

"The first thing a witness says is, 'How did you get that?'" Phillips said.

The answer: You put it out there, and they found it.

Prosecutors and Defense attorneys agree, there's no going back now. Your only real protection is to watch what you say and post.

"It's the old adage: If you would be embarrassed, or your mother would be embarrassed, don't put it out there," Phillips said.

And if temptation is too much, the best thing you can do is log off.

Phillips added that it's not only yourself you have to worry about. He says you need to be aware of what your family and friends are writing online. Lawyers can pull information from their pages as well -- and use it as evidence against you.

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