Can My Spouse’s Facebook Posts Be Used Against Me in Court?

May 4th, 2017 by Tad Nelson in Criminal Defense

A criminal domestic violence case does not automatically end if the alleged victim declines to testify. Texas prosecutors can and will use other evidence to prove a defendant’s guilt. This may include statements made to the victim’s friends, and in some cases even posts made to social media networks.

Houston Man Convicted of Misdemeanor Assault Despite Wife’s Testimony

In a recent case from Houston, a Texas appeals court upheld a defendant’s conviction based on both of these things. The defendant was charged with “assault involving family violence,” a misdemeanor. Specifically, prosecutors accused the defendant of assaulting his wife. But at trial, the wife testified that her memory of the alleged assault was “blurry,” and possibly compromised by her use of alcohol and prescription medications.

Nonetheless, the state introduced evidence suggesting the defendant did, in fact, assault his wife. Prosecutors showed the jury a picture of the wife’s Facebook posts from the night of the alleged incident. She wrote, among other things, that the defendant was “angry again” and she “can’t stop being scared.” One of the wife’s friends, upon reading those posts, became concerned and called the police.

The friend also testified at trial. She said the wife told her that afternoon that the defendant has been committing “verbal and physical abuse” for some time. The friend also told a police officer who investigated the initial family violence claim that the wife “had been assaulted by her husband.” The defendant objected to the introduction of both the friend’s testimony and the Facebook posts as inadmissible hearsay, but the judge allowed the jury to hear all of it. Ultimately, the jury found the defendant guilty.

The Texas 14th District Court of Appeals affirmed the defendant’s conviction. With respect to the Facebook posts, the appeals court said the defendant failed to identify “specific statements” that were inadmissible. Instead, he made a “general hearsay objection” to the entire exhibit, which the judge overruled without stating a specific reason.

All that said, the appeals court said the wife’s “present-sense impressions” via her Facebook posts were properly admitted. The prohibition on hearsay testimony only applies to statements made in retrospect, i.e. after taking time to think about what you are saying. Statements made in the moment or as the witness “was perceiving the event or condition” are not considered hearsay. So, for instance, the wife posting to social media statements like, “My husband is angry again” and “He’s yelling right now” are admissible as evidence.

Are You Facing a Family Violence Charge in Texas?

Given the popularity of social media, it is understandable that prosecutors would look to services like Facebook and Twitter to find potentially incriminating evidence. Social media often provides users with a false sense of intimacy. They forget they are in a public place and make rash, emotional statements that may not provide complete context.

If you are accused of criminal domestic violence, it is important to work with an experienced Houston criminal defense attorney who can examine all of the evidence against you and make sure your interests are represented. Contact the Law Offices of Tad Nelson & Associates today at 281-280-0100 if you need to speak with an attorney immediately.

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