Here is something that is no surprise after people violently tried to overthrow the government: The FBI has a Sedition and Conspiracy task force. The individuals who stormed the United States Capitol on January 6, 2021 face a multitude of charges ranging from trespassing to advocating the overthrow of the government (18 U.S.C. § 2385) and insurrection (18 USCS § 2383).
There is substantial social media evidence of the attack on the US Capitol…posted by those who participated in the attack. Criminal complaints with embedded screenshots of social media posts by the rioters are being issued by courts. Below is one such complaint, with images and social media posts by the suspect.
miller_garrett_-_complaint_statement_of_facts_0This raises questions many might wonder, how is social media evidence going to be used in the future trials of those arrested?
Consider the case of US v Davis, where Instagram photos were used to help demonstrate a conspiracy between the Defendant and others to “lure a victim who posted jewelry for sale on Craigslist to Oakland for the purposes of robbing her at gunpoint.” United States v. Davis, 2014 U.S. Dist. LEXIS 24750, 6-8 (N.D. Cal. Feb. 24, 2014). Or cases where evidence of felony vandalism were photos of graffiti posted on the suspect’s Facebook and Instagram accounts. People v. Garcia, B279122, at *18-19 (Cal. Ct. App. Apr. 23, 2019).
Social media posts raise issues of hearsay that can quickly be resolved as party admissions. In a case where the victim of a shooting identified the shooter by looking at his Facebook “friends,” and recognized the shooter as the brother of one of his “friends,” a social media post was material to the case. The post by the defendant stated he was going to shoot up the victim’s house. After making the post, the victim’s house was shot up at 400am the next morning. People v Shivers, 2017 Mich. App. LEXIS 1075 (Mich., June 27, 2017) (Unpublished Opinion).
The victim testified about the statement of future intent on the Defendant’s Facebook profile. While the profile was not offered as an exhibit, the testimony about the status message was sufficient to show the defendant made the statement. The court rejected the conjecture that someone else could have been posting messages and photos on the Defendant’s Facebook profile. Other courts have rejected this nihilistic argument on social media profiles where there is testimony about phones being password protected and the social media accounts had the email address of the defendant for login credentials. See, Atkins v. Commonwealth, 800 S.E.2d 827 (Va. Ct. App. 2017).
The Capitol rioters took social media evidence to a new extreme, with live streaming breaking down barricades and breaching Congress. The possible evidence that can be used at trial so far includes: a defendant sitting in the office chair of the Speaker of the House; a now former West Virginia elected official who live streamed himself entering the Capitol with the mob and identified himself by name; a realtor who identified herself by name on a live stream entering the Capitol; and of course a woman who told a news crew that she had been pepper sprayed, because she tried to storm the Capitol to be part of “the revolution.”
All of those statements can and should be considered party admissions, which is when a statement is offered against an opposing party and was made by the party in their individual capacity. See, Federal Rule of Evidence Rule 801(d)(2)(A).
Storming Congress and identifying oneself while making statements ranging from threats of violence against Representatives, Senators, the Speaker of the House, and Vice President of the United States, are textbook party admissions. You can bet that Federal Prosecutors will offer these recordings, social media posts, and photos, for arrest warrants and any cases that go to trial.