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For quite some time, I have warned that the use of information taken from social network sites can prove to be of critical importance in a criminal prosecution.

Recently, a Freedom Of Information Act request has produced a document published by the Department of Justice titled "Obtaining and Using Evidence From Social Networking Sites." In the document the government readily recognizes that personal communications on social networking sites including Facebook, MySpace, Twitter, and Linked-in can develop information in a criminal prosecution that can establish important issues like motive; personal relationships in conspiracy cases and alibis. This information can be used in a whole host of situations in a criminal case, including bail hearings, trials, and the apprehension of fugitives. One former prosecutor from California, stated rather pointedly, that the first thing that he did when he was assigned a case was to Google everyone involved in the case, including victims, suspects and material witnesses. He also made a "Google image search."

Clearly, it is very important for defense attorneys to review a client’s postings on all social networking sites, and to instruct the client to refrain from any further publication on those sites, especially as that information may relate to the pending prosecution. A defense attorney should be equally aware of the fact that instruction to the client to purge information from social networking sites may produce an accusation that both the lawyer and the client have obstructed justice by destroying important evidence or that the intentional destruction of information on the client’s sites is a declaration of guilt.

Social networking information can and should be used affirmatively in defending a criminal accusation. This information can be obtained from the government, the companies that provide the social networking services and the Internet.

As to the government, the discovery process in most criminal cases requires a turnover of material that is either exculpatory or capable of impeaching the government's witness. Resultantly, a defense attorney should demand that the government conduct a thorough investigation of all social networking entries made by material witnesses in the government's case. In a recent case in California, an industrious defense attorney received a turnover of postings made on a social networking site from one of the government's material witness who was a police officer. On his site, the police officer bragged about being a "rogue cop" and a "garbage man, because I pick up trash for a living."

Defense attorneys can also subpoena information from social networking companies, provided that they can show that the information is relevant and admissible. This may prove to be a tough task, because under most circumstances, subpoenas of this nature, are tantamount to a "fishing expedition"

The third source of social networking information is the Internet. In that regard, a thorough search of the Internet for public dissemination of information relating to all potential witnesses is an important component of a defense attorney's responsibility. It should be remembered that there may be certain ethical concerns associated with efforts to infiltrate a social networking site by using a fictitious identity. At least two bar associations have issued advisory opinion on this type of conduct.

Finally, information on social networking sites can assist a defense attorney during the jury selection process. In the last few months, an appellate panel in New Jersey endorsed a civil attorney’s effort to locate information of this nature during the jury selection process with his computer.

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