Question: If you lost your loved one due to the negligent actions of another person and that person posted information about the incident on social media, could those posts be used as evidence in a wrongful death case? Answer: Yes.
According to an article from the SunSentinel, the Fourth District Court of Appeals ordered last year that the social media records of a man accused of hitting and killing a 25 year old MMA fighter with a car in 2016 be turned over to the lawyers of the deceased man’s estate as evidence in a wrongful death case. The existence of the social media records, which may have included posts around the time of the collision, was brought to light by police and prosecutors during a criminal trial against the accused.
The accused, Dennis Wright, was alleged to have been driving his car 116 miles per hour when he slammed into Jordan Parsons as Parsons was walking in the crosswalk at an intersection. Wright’s lawyer unsuccessfully argued that the social media posts were constitutionally protected under the Fifth Amendment.
A further report from WPTV, of West Palm Beach, stated that Wright invoked the Fifth Amendment during a deposition in the wrongful death case, which was filed by Parsons’ mother. The lawyer for Parsons’ estate noted that Wright took all of the posts down and deactivated his accounts. However, the posts were archived by the social media platforms. The court ordered that Wright sign the authorization for those platforms — Facebook, Instagram, and Snapchat — to release the archived records.
What the Law Says About Social Media
According to the Florida Bar Journal, in 2012, the Florida Rules of Civil Procedure provided guidelines pertaining to the discoverability of electronically stored information. The best case scenario as it pertains to preserving social media records for use as evidence is if it remains in the public domain and screenshots of it can be taken. However, once the post has been deleted and is no longer publicly available, social media platforms can only release these personal contents or archived records if there is a valid law enforcement request by way of a subpoena or a court order.
The admissibility of social media as evidence is not automatic, the Florida Bar Journal notes. Authentication is a condition of admissibility, meaning that proponents must show in a way that is reasonably clear to a juror that the post was actually made by the individual that they’re claiming made it. Some difficulties in proving authenticity of a post include the possibility that someone other than the account holder could have accessed the account in question and made the post. Additionally, there is the “tagging phenomenon” in which the account holder is tagged in a post that he or she had no responsibility for creating.
The most common way of establishing authenticity of the post, the Journal stated, is through witnesses who can testify that the post came by the individual in question. In the case against Wright, police and prosecutors claimed that he sent Snapchat posts to his ex-girlfriend around the time of the crash, and that he also posted on Instagram during the same time period.
The Importance of Acting Quickly
As stated above, when determining whether or not to use social media posts as evidence in a wrongful death case, it is easier to prove the authenticity of the material through screenshots, while the posts still remain public. The more time that passes, the greater the likelihood that these incriminating posts will be taken down and the accounts deleted. However, there are also time limits when filing a wrongful death lawsuit. The failure to file in a timely manner may prevent you from getting the compensation that you, as a survivor who has endured the pain and anguish of losing your loved one, need to get on with your life. For more information and to schedule a free consultation, contact us.