Missouri criminal defense attorneys Chris Combs and Steve Waterkotte answer key questions that could affect your criminal case:
- Can deleted social media messages be retrieved?
- Can deleted text messages be subpoenaed in court?
- Are text messages admissible in court?
- Can police lie to you?
- Can police lie about charges?
- Can the police make somebody incriminate themselves?
This video is part of a series on your legal rights during police interactions. Learn how law enforcement builds a case and how a criminal defense attorney can help protect your freedom.
Interview Transcript
Scott Michael Dunn: I’ve got a few questions relating to access to communication, be it on the social networks or independent of that, be it like text messaging or what have you. But there’s a few specific questions that we want to rapid fire out that are on the mind of those that are searching for your service.
Chris Combs: Sure thing.
Scott Michael Dunn: Can social media messages be used as evidence in court?
Steve Waterkotte: Yes, and they frequently are. In the DWI sense [they usually don’t] play a role. However, [they] can. But in other criminal cases or in general rules of evidence, social media messages, posts, snaps, frequently are part of any criminal case.
Scott Michael Dunn: Can you use social media as evidence?
Chris Combs: Yes. And I think Steve just touched on that and there’s more information on our website and things like that. But yes Facebook messages, snaps, posts, where you were when something happened, a lot of posts have your geolocation.
So yes, social media can certainly be used as evidence for your benefit and against you.
Scott Michael Dunn: Can deleted social media messages be retrieved and use this evidence in court?
Chris Combs: It’s tough.
Steve Waterkotte: As we know, nothing’s truly ever deleted, right? Screenshots, you could delete Snapchat, which the message is viewed and it goes away. Nothing ever truly goes away.
We have cases that they can be subpoenaed. Whether it’s Facebook – again, there could be screenshots of the message itself and it’s deleted. Snapchat, that can be subpoenaed. I don’t know the length each agency has, but Snapchat is frequently subpoenaed for cases and those certainly can be used.
It’s akin to the person making a statement. Obviously, we know statements made by a suspect or defendant can be used against them in court. If that’s a statement that they made or adopted it can be used against them.
Scott Michael Dunn: Are text messages admissible in court?
Chris Combs: Yes. And often are. We see quite a bit of that. Obviously, [it’s] case specific and case by case basis. However, yes, we see text messages come in quite frequently.
Scott Michael Dunn: Can private messages be used in court?
Steve Waterkotte: Yes. When you say private, I assume you mean text or DMs and things of that nature. Again, any statement made by the defendant is almost always admissible. There’s gotta be some evidence that this is the person who authored that statement. And it’s not a hard burden to overcome.
Text messages are very often part of criminal cases. And again, the burden to prove the authenticity of them and who authored them. You gotta say, “Well that’s his Facebook account. He sent a private message to Jane Doe.” And now that can be used against the defendant.
Scott Michael Dunn: And we talked about things not necessarily ever being deleted or gone forever, but can deleted text messages be subpoenaed?
Chris Combs: Yes. Of course you have the cloud, right? So you delete it off your phone, then you go to recently deleted items, you delete it from that folder. You have to look at your phone and its backup settings. If it’s an iPhone, how often is it back to updating to the cloud?
Sometimes things do go away. I have a case recently where we were looking for some text messages that our client had deleted that would have been advantageous to us. We sent off his computer and his phone. You almost have to have the device these days. You’re not going to get it from AT&T or Verizon or Apple. But if you have the device, almost always you can recover it.
We do employ forensic computer data, to extract it, do a data dump. But to answer your question, yes.
Scott Michael Dunn: Are police legally allowed to lie?
Chris Combs: Yes, and frequently do. We gave an example earlier of, “If you don’t blow into my machine right now you’re going to lose your license for a year.” They’re not the judge, jury and executioner. You have due process. You don’t lose your license on the spot. You are released from the scene with a 15 day driving permit.
Quickly, the analogy I always give when people are floored when they hear that police are legally allowed to lie in their investigation is I say, “You could be in an interview room. They can say we have your DNA at the scene on the murder weapon.” And that could be a complete lie to elicit a confession.
And they’re legally allowed to do that. I know it blows people’s minds.
Scott Michael Dunn: That’s crazy.
Are police allowed to lie about charges in general?
Chris Combs: Could you be a little bit more specific?
Scott Michael Dunn: I think this would relate to any charges.
Chris Combs: Yes, would be the answer.
Scott Michael Dunn: Can they just say, “I’m going to find you guilty of something regardless?”
Chris Combs: Here’s the thing. Police conduct their investigation. They take everything they’ve built in their investigation, and they take it and they present it to a prosecutor at some point in time. Now, many times we will see an officer applied for these charges, assault one, ACA, et cetera, resisting arrest. Then the prosecutor looks at it and says, “Well, here are the charges I think I can prove the best,” so it can always come out different.
So yes, police can say, “Look, you’re getting charged with X, Y, and Z,” but they’re not making the charging decision. A prosecutor’s reviewing that file to make a charging decision.
So, yes.
Scott Michael Dunn: Can the police make somebody incriminate themselves?
Steve Waterkotte: No, they cannot. Before an officer interrogates you, if an individual is in custody or under arrest, before they start asking questions, what we consider an interrogation, they have to Mirandize you.
They have to give you your Miranda rights. You have the right to remain silent. We all heard that on TV at some point or another. And they have to do that before they ask those questions. At which point, the suspect or the defendant has the right to refuse to answer those questions. Has the right to assert his or her wish to have an attorney present. Which we would almost always advise. Always actually, not almost, if they don’t have us there.
And there’s very few situations that we allow our clients to talk. It’s got to be very compelling reasons. But, almost always we would tell our clients not to speak. They cannot compel you to answer those questions, under the threat of, “Hey, if you don’t answer these, we’re going to do X, Y, or Z,” because that would be a coercion. Those are some things that we could potentially get thrown out if they ultimately do answer it.
But the suspect or defendant always has the right to refuse to answer those questions after the Miranda warning has been given. We would always advise to do so, to assert your right to have an attorney president and assert your fifth amendment right.
Scott Michael Dunn: How would you describe your relationship with Hexxen? And if you have some core benefits that you’ve had working with Hexxen, what are they?
Chris Combs: I’ve been working with Hexxen now for seven years, better part of a decade, maybe eight. It has transformed my life. And I truly mean that.
It has helped me be more accessible to clients. It has, over a period of a decade, helped my firm grow. I started out as a solo practitioner — and, of course, partnering with Steve has put us on a quicker path for growth — but just my relationship with Hexxen I went from a one-man show to, it was myself, [to] a head paralegal and another lawyer.
And the best part about that is it allows us to allocate and to look at each person’s role and define each person’s role. It is so important that we are utilizing our skill sets the best way that we can. And Hexxen has helped us do that.
Also just getting information out, letting people know, like we’ve talked about here today, your rights.
Hexxen was one of, I would say, one of the most critical business partnerships that I’ve made in my life. I can say that wholeheartedly.
Scott Michael Dunn: That’s awesome.
If you were to recommend Hexxen to another business or a friend that was looking for accessibility, visibility, growth, how would that go? How would that run?
Chris Combs: I would say that it’s almost similar to our law firm. Hexxen is a Mercedes, right? It’s not meant for everyone. They don’t build $1,500 websites. We don’t do $1,500 DWIs. You get what you pay for.
My first impression of Hexxen when I first walked in here was I was very impressed. The amount of time and effort that was put into their proposal to me, on what they wanted to do for me, without having a dollar of my money was so impressive.
I couldn’t afford it at the time. I had some terrible experiences with some other similar companies in the industry. But I never forgot this place. I remember being very [impressed], [the] presentation and what we can do. And it all made sense. And I liked it. So much so that four years later, five years later, I came back to them when I had the money.
I’ve been with them ever since. Eight years running now. And I don’t see myself ever going anywhere else. Just the rapport and the trust that has been built. I would refer Hexxen to anyone.
Scott Michael Dunn: That’s a very nice compliment.
Chris Combs: It’s the truth.
Scott Michael Dunn: Yeah, that’s awesome.
It was so nice to hang out with you guys today.
Steve Waterkotte: Likewise. Always enjoyable.
Scott Michael Dunn: I love it. It’s great conversation. I always walk away from these conversations with a sense of comfort. You are professionals. And by any sense of it you are a better professional than most of the other competitors that are in the industry.
I’m humbled by that in the sense that I can come in here and have this conversation. But in this same respect, I’m comfortable and I feel safe having a conversation with you guys. And I think that’s a really amazing trade. Not just the accessibility. The knowledge, integrity, those are all big values for any business to run effectively and grow in any sense of the word.
But what I find is the cherry is that you’re real, approachable, and it’s comforting to have a conversation with you. So I’m grateful for all the knowledge and all of the information that you’ve shared for me and I’ll be selfish.
Steve Waterkotte: Thank you. Thank you for giving the opportunity to hopefully impart some knowledge regarding the criminal defense world to our clients, prospective clients, just anybody that might be interested.
Scott Michael Dunn: Absolutely done that. We did that on the first podcast too. Today we did that even at a new level. We did that.
Chris Combs: I would agree. And thank you for having us.
Scott Michael Dunn: I can’t wait to see you again.
Steve Waterkotte: Let’s do it.
Scott Michael Dunn: Signing off for Hexxen, where we take marketing to the power of X.
If you need Missouri’s leading criminal defense team to defend your rights and freedom, speak to a criminal defense attorney today at (314) 900-HELP or contact us online for a free case review.
