In today’s digital world, social media activity can create a permanent record for users with consequences that extend beyond the online world and into the courtroom. In New York state criminal cases, online activity such as Facebook posts, Instagram photos, TikTok videos, text messages, X posts, and other social media content can be used as evidence, as outlined by the New York State Unified Court System’s Guide to New York Evidence.

How Is Social Media Evidence Used in New York Criminal Cases?

Depending on the facts of a case, prosecutors may rely on social media content to support a wide range of criminal allegations. According to the New York State Unified Court System, common ways social media content is used in criminal cases include:

• Proving motive or intent. Posts may reveal a defendant’s state of mind, plans, grudges, threats, or reasons for committing an alleged crime. For example, threatening messages or hostile comments directed toward a victim may be offered as evidence of motive.
• Showing admissions or statements. A defendant’s own posts, comments, photographs, or videos can sometimes be introduced as admissions in court. A post discussing criminal activity or appearing to acknowledge involvement in an incident may be used by prosecutors as evidence.
• Establishing identity. Photos, videos, tagged content, and profile information may help identify individuals involved in a crime. Social media evidence may also place a person in possession of certain items or associate them with particular people or locations.
• Confirming or refuting alibis. Posts, location data, timestamps, and uploaded media can help establish where someone was at a particular time. This evidence may support or undermine a defendant’s claimed alibi.
• Impeaching witnesses. Attorneys may use social media content to challenge a witness’s credibility if online statements conflict with testimony given in court.

Social Media Evidence Must Be Authenticated

Before any evidence can be shown to a jury, the party offering it must satisfy New York’s evidentiary rules, and show that the content is both authentic and relevant.  The party offering the evidence must prove that the post is actually what they claim it is and that it is connected to the person alleged to have created it.

Examples of authentication may include:

• testimony from the person who created the post;
• testimony from a witness who saw the post online;
• account ownership information obtained through a warrant or subpoena;
• metadata, IP information, or other digital evidence linking the account to a specific user; or
• distinctive details in the content showing it was likely authored by the defendant.

The New York Court of Appeals has ruled that merely finding a photo or post on a social media profile is not always enough. In People v. Price (2017), for example, the Court found that a photograph from a social media account was not adequately authenticated because the prosecution failed to sufficiently establish that the defendant controlled the account.

The Court stated that digital images and online content can be easily manipulated or uploaded by others. Because of that risk, courts require evidence showing that an electronic image is what its proponent claims it to be.

Even if authentic, the post must help prove or disprove an important fact in the case.  According to the New York State Unified Court System, the general rule is that evidence must be relevant, meaning it must have a tendency to prove or disprove a material fact, and that evidence must be authenticated before admission. This includes proof of:

• motive or intent;
• threats against a victim;
• admissions of guilt;
• possession of property, weapons, or contraband;
• location or whereabouts at a particular time; and
• contradictions to a defendant’s or witness’s testimony

Can Social Media Evidence Be Challenged?

While social media evidence can be powerful, it is not automatically accepted at face value and may be subject to legal challenges. According to New York evidentiary rules, defense attorneys may challenge online evidence by arguing:

• the account was hacked or used by someone else;
• the content was altered;
• the evidence was obtained unlawfully;
• the post is hearsay and does not fit an exception to the hearsay rule; or
• the evidence is more prejudicial than probative.

Can Deleted Social Media Posts Be Used as Evidence?

In many criminal cases, generally, deleted social media posts may still be recoverable and admissible as evidence, provided investigators can recover them and prosecutors can satisfy the court’s rules for admissibility.

Even after a user deletes content, copies may still exist:

• on the social media platform’s servers;
• in backups or archived records maintained by the platform;
• on phones, computers, or other devices;
• through screenshots, downloads, or archives created by other users; or
• through digital forensic recovery techniques. Law enforcement may obtain such information through search warrants, subpoenas, or other lawful legal processes, depending on the circumstances and applicable laws. And like any other evidence, social media content generally must meet evidentiary requirements.

In some circumstances, prosecutors may seek to argue that intentional deletion of relevant evidence after a person becomes aware of an investigation supports an inference of consciousness of guilt. Whether such evidence is admissible depends on the facts of the case and the court’s rulings.

What NOT to Post Online During a Criminal investigation

Individuals involved in a criminal investigation should exercise caution on social media, as seemingly harmless posts may affect their case, such as:

• details about the alleged incident;
• statements about your whereabouts or activities;
• photos or videos that could contradict your account;
• comments about witnesses, victims, prosecutors, or law enforcement;
• threatening, intimidating, or inflammatory remarks;
• private messages discussing the investigation;
• posts that could be interpreted as admissions of guilt; or
• content that conflicts with statements made to investigators or in court.

When Should You Speak With a New York Criminal Attorney?

If you are under investigation, have been arrested, or believe your social media activity could become evidence in a criminal case, it is important to consult a New York criminal defense attorney as soon as possible. Do not make any statements to law enforcement, invoke your right to remain silent and state that you want to speak to a lawyer. Even if you have already answered questions or provided a statement, it is important to consult a New York criminal defense attorney who can review what was said, advise you on how to respond to any future contact from law enforcement, and help protect your rights throughout the investigation and any subsequent criminal proceedings.

Tully Rinckey attorneys understand that issues surrounding a criminal case can be challenging, and they will handle your matter with the attention and tact it deserves. If you have additional questions about how social media can be used in New York criminal cases, or what your rights are in New York State, our team of criminal defense attorneys is available to assist you today. Please call (8885294543 to schedule a confidential consultation, or schedule a consultation online.

Greg T. Rinckey is one of Tully Rinckey PLLC’s two founding partners. He worked with Founding Partner and fellow Hofstra University alum Mathew B. Tully in 2004 to build the firm from the ground up into the coast-to-coast, full-service powerhouse that it is today. As Founding Partner, Greg collaborates with Mat in all areas of strategic planning and law practice management to develop and deploy innovative business solutions that continue to grow the firm.