What You Say On Facebook Can Be Used Against You

A recent 7th Circuit court decision in United States v. Lewisbey showed how statements made on Facebook could be used against someone in a criminal prosecution. In Lewisbey, David Lewisbey was convicted of several counts of unlawfully transporting and dealing firearms. Lewisbey had been using a fake Indiana identification to purchase guns at Indiana gun shows and then sell them in Illinois. Lewisbey made Facebook posts about his exploits, including photos of himself with lots of guns and lots of money, which led federal agents to set up a sting operation against him. These Facebooks posts and text messages showing Lewisbey selling guns to individuals were used as evidence at Lewisbey’s criminal trial where Lewisbey was convicted on all counts in the Federal District Court. Lewisbey appealed his convictions and, as part of that appeal, challenged the admission of text messages and Facebook posts as evidence at this trial.

On appeal, Lewisbey argued the Facebook posts and incrimination text messages should have been barred as hearsay and because they were not properly authenticated. Lewisbey also argued the evidence should not have been admitted as its probative value outweighed its prejudicial affect. The Court found that Lewisbey’s hearsay argument was a “nonstarter” because the Facebook posts and text messages from his own phone were his own admissions and were, therefore, exempt from being hearsay. Lewisbey’s authentication argument fared no better. One of the phones used to send the text messages was found on Lewisbey’s person when he was arrested and a recorded message to his mother said the police had taken his phone; the other phone from which text messages were sent was found in his bedroom. The phone found on his person had multiple indicators it belonged to Lewisbey while the phone found in his bedroom was used to send text messages to the government’s confidential informant. As it related to the Facebook posts, the Court found there were many indicators the page was Lewisbey’s, including his nickname, date of birth, corresponding email addresses, photos which matched photos on one of his confiscated phone, and a mobile phone application on the confiscated phone which matched the Facebook profile. Based on the fact the evidence was properly admitted, the Court had little problem upholding Lewisbey’s conviction.

The moral of the story is what you post on Facebook can be used against you in a criminal proceeding. One should always be careful with what they post on social media, but never more so than when posting about activities, which they wish to keep from prying eyes because, as they say, it can be used against you in a court of law.

If you would like more information on this subject, contact attorney Lance Ziebell at 847-705-755 or lziebell@lavellelaw.com.