How Cell Phone Data, Social Media, and Digital Evidence Are Used in Virginia Criminal Prosecutions
Alex Murdaugh said he was not at the kennels shortly before his wife and son were murdered. His son’s phone told a different story.
A video recorded on Paul Murdaugh’s phone captured Alex Murdaugh’s voice near the kennels minutes before the killings. Prosecutors used the recording, along with other cell phone activity, to reconstruct the timeline and challenge Murdaugh’s earlier account of where he had been.
The case showed how digital evidence can become important even without a text message admitting to a crime. Virginia prosecutors may use location records, messages, photographs, videos, social media activity, and account information to establish identity, intent, relationships, or a timeline. A Virginia criminal defense lawyer can examine how the information was obtained and whether it actually connects the defendant to the alleged offense.
Police Can Get Cell Phone Data Through Legal Process
Police cannot automatically search everything stored on a phone simply because they arrested its owner.
In Riley v. California, the U.S. Supreme Court held that police generally need a warrant before searching digital information on a cell phone seized during an arrest. The Court recognized that phones contain substantially more private information than ordinary physical items found during a search.
Virginia also regulates records held by electronic communication providers. Virginia Code § 19.2-70.3 allows certain subscriber records to be obtained through specified legal procedures, including a grand jury subpoena, search warrant, court order, or consent. Contents of electronic communications and real-time location data generally require a search warrant, subject to statutory exceptions.
The defense can review the warrant, affidavit, dates, accounts, and categories of information requested to determine whether investigators stayed within the authorized search.
Location Data Can Be Used to Build a Timeline
A phone does not need to contain an incriminating message to become useful to prosecutors.
Cell-site and other location records may be used to argue that a device was near a home, vehicle, business, or alleged crime scene at a particular time.
In Carpenter v. United States, the U.S. Supreme Court held that obtaining the historical cell-site location information involved in that case constituted a Fourth Amendment search and generally required a warrant supported by probable cause.
Location data still identifies a device. It does not automatically prove who was carrying that device at a particular moment. That distinction can become important when several people had access to the phone.
Text Messages Can Be Used to Show Intent or Planning
Prosecutors may use messages to argue that a defendant planned an offense, made a threat, knew about particular conduct, or communicated with another person involved in the case.
But the Commonwealth still needs evidence connecting the communication to the alleged sender.
In Atkins v. Commonwealth, the Virginia Court of Appeals upheld the authentication of text messages and a tweet where evidence included the defendant’s ownership of a passcode-protected phone, his knowledge of the passcode, account information using his name, and other corroborating circumstances.
A message appearing on someone’s phone is therefore not necessarily the end of the authorship question.
Social Media Posts Can Be Used at Trial
Facebook, Instagram, and other social media activity can become evidence in a Virginia prosecution.
Posts, direct messages, photographs, comments, and screenshots may be used to establish communications or conduct before and after an alleged offense.
In Diaz v. Commonwealth, the Virginia Court of Appeals considered Facebook posts in a murder prosecution. Diaz admitted making posts from the victim’s account to create the appearance that he was still alive. The court held that the testimony sufficiently authenticated the posts and also treated the screenshots as duplicate originals for purposes of the best evidence rule.
Digital Evidence Must Be Authenticated
Digital evidence still has to be shown to be what the prosecution claims it is.
Virginia Rule of Evidence 2:901 requires evidence sufficient to support a finding that the item is what its proponent claims.
Prosecutors may use usernames, phone numbers, passwords, device ownership, admissions, account information, or surrounding communications to establish that connection.
The defense can challenge who created the material, whether someone else had access to the account, whether screenshots omit important context, and whether the prosecution is drawing conclusions the underlying data does not actually support.
Make the Digital Evidence Prove What the Commonwealth Says It Proves
A location point, text message, or social media post can look definitive until its source, context, and connection to the defendant are examined. Contact a top-rated VA criminal attorney to discuss how that evidence may affect your Virginia criminal case.