Getting social media evidence admitted into evidence is not difficult, but it requires planning from the moment the evidence is obtained until trial and you need to ensure that you have: (1) the witnesses with the requisite personal knowledge of the contents of the social media post and who accesses, uses, controls or has dominion over the social media account and/or to whom the account is attributed; (2) timely reviewed and secured the social media account and/or electronic devices to safeguard them from alteration; (3) retained the appropriate expert; (4) obtained the relevant electronic device records which document that such communications took place; and/or (5) an inviolate chain of custody of the social media evidence. Recent New York Court of Appeals and Appellate Division decisions highlight the required predicate information needed in order to have social media evidence admitted as well as identify the traps for the unwary that might result in the exclusion of such evidence.

In People v. Rodriguez, 38 N.Y.3d 151 (2022), defendant moved to preclude the admission of printouts of six screenshots, arguing that they violated the best evidence rule and were not properly authenticated. The trial court denied the motion, concluding that there was no reason not to permit the screenshots to be shown to the jury and that, "with the proper foundation," the screenshots would be permitted into evidence. At trial, the victim testified that defendant asked to exchange phone numbers and thereafter texted her several times a day. To corroborate this testimony, the People submitted T-Mobile records demonstrating that defendant and the victim communicated via text messages or phone calls 246 times during the relevant time period. The victim identified the six screenshots, confirming that they depicted some of the messages sent to and from defendant's phone, and stated that the screenshots were a fair and accurate representation of those messages.