Can A Prosecutor Use Facebook and Instagram Posts as Evidence Against a Defendant in a New York Criminal Case?


March 3, 2023

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Police and prosecutors regularly scour the social media accounts of defendants and known offenders for potential evidence to use against them. Occasionally, a third party might send the police screenshots or links to a particular social media post. And you can face a new arrest and additional charges because of a Facebook Instagram post.

Can This Be Used as Evidence?

To be properly admitted into evidence, a social media post would have to be authenticated just like any other piece of evidence. Just like photographs, screenshots, and videos, the prosecutor must first establish through testimony that the item “accurately represent[s] the subject matter depicted” People v. Byrnes, 33 N.Y.2d 343 (1974), and has not been altered in any way. People v. McGee, 49 N.Y.2d 48 (1979). However social media accounts require proof of more than just that, and the prosecutor must also establish that you have ownership and control of the account in question. People v. Price, 29 N.Y.3d 472 (2017). In Price, the Court of Appeals held that “the authentication requirement cannot be satisfied solely by proof that the defendant’s surname and picture appear on the profile page.”

How Could Ownership and Control be established?

In today’s digital age, with the widespread accessibility of Photoshop, Deepfakes, and AI, no one is safe from the dangers of false accounts, stolen identities, and even “catfishing.” Because of this, it’s necessary that the prosecutor prove that whatever post or message was uploaded was made by an account that you own and control, and the prosecutor’s own affirmation that the account belongs to you is not enough. Lord v. Columbia County Sheriff, 75 Misc. 3d 581 (2021). Social media accounts have been rejected where the court was not satisfied with the authentication because, among other things, the prosecutor could not prove the account belonged to, and was controlled by, defendant. People v. Upson, 186 A.D.3d 1270 (App. Div. 2d Dept, 2020)  However, the Second Department held in People v. Kingsberry, a Facebook post was properly authenticated where a Facebook representative testified to the veracity of the account, and a close friend of the Defendant testified to regularly communicating with the defendant almost daily through that account. 194 A.D.3d 843(App. Div. 2d Dept, 2021).

So, Can the Prosecutor Use My Facebook/Instagram Post or Not?

Maybe, but it needs to be properly authenticated to be admissible as evidence. Posts or Stories, even if taken down, can potentially be used if a screenshot, photograph, or other record of it exists, and it can be proven to have come from an account you control and someone can establish the post has been unaltered and is a fair and accurate representation of what was actually posted.

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