Criminal Defense Lawyers

Social Media Posts as Evidence: What Prosecutors Know That You Don’t

You’re reading this because prosecutors mentioned your Instagram in court yesterday—and you’re panicking. Wrong move. You deleted those posts three days after the incident, thought you were protecting yourself. Dead wrong. Those deletions, the fact you tried to hide them, tried to make them disappear, that’s now proof you knew you were guilty. Prosecutors recovered everything—every single post, every single deletion—and what’s happening to you right now while you’re searching Google for answers is worse than you think, worse than you can imagine. Your next 72 hours, these next 72 hours, determine what evidence gets admitted at trial.

Everything You Deleted? They Got It Back

You thought hitting delete would erase the posts. Didn’t happen. What actually happened when you deleted those 47 Facebook posts last Friday morning—6:23 AM, they have the exact timestamp, the exact second—was this: Meta keeps deleted content for 90 days after you click delete, period, irrespective of whether you thought it was gone, irrespective what you believed about privacy. Instagram retains deleted posts 30-90 days, Twitter holds deleted tweets minimum 30 days, and Snapchat preserves everything for 30 days if prosecutors issued a preservation order—which they did, they absolutely did, 48 hours after your arrest when you didn’t know it yet, when you had no idea it was happening, when you thought you were safe.

When prosecutors subpoenaed the platforms last month—and they were doing this weeks before you even hired our attorneys, weeks before you knew you needed attorneys, weeks before you understood what was happening—deleted content gets recovered, and produced in discovery. The deletion accomplished nothing except creating a second piece of evidence against you, a completely new problem you created yourself. Consciousness of guilt. Federal Pattern Jury Instruction 2.06 allows prosecutors to argue that “consciousness of guilt may be inferred from evidence of flight, concealment, or destruction of evidence”—translation, you deleted the posts due to you knew they were incriminating, due to you knew they made you look guilty, and that’s what the jury hears at trial.

Timeline is everything here. Deleted posts six months before any investigation? Normal privacy maintenance, routine account hygiene, cleaning up your digital life. But deleting 47 posts on Friday—three days after FBI agents showed up at your door on Tuesday, three days after they knocked and you panicked—that looks guilty, looks like consciousness of guilt to every single juror sitting in that box. Prosecutors will show the jury a timeline, will walk them through it step by step: “Incident occurred Monday, FBI visited defendant Thursday, defendant deleted 47 Facebook posts Friday at 6:23 AM.” Consciousness of guilt. They don’t need to prove what the posts said, don’t need to prove the content was actually incriminating—the deletion itself, the fact that you tried to hide them, that’s proof enough you knew you were guilty.

They recovered everything. Documented the exact timestamps. Built a deletion timeline showing your panic, showing your state of mind, showing your consciousness of guilt. And they’re using it twice—once for the content of what you posted, once to argue the deletion itself proves you knew the posts were incriminating, knew they made you look bad. You made their case stronger by trying and hide the evidence. That control you thought you had, that security you believed in, gone the second you hit delete, completely gone.

Privacy Settings Don’t Work

Your Instagram is locked, tweets are protected, Facebook is friends-only. None of this matters—not a single bit of it matters, not even a little—when prosecutors issue a subpoena. Privacy settings protect you from strangers viewing your posts, from random people looking at your life—they offer zero protection, and I mean zero protection, from federal court orders.

The legal doctrine is “voluntary conveyance to third party.” You posted to Facebook, you shared it with Facebook the company, you conveyed your information to a third party voluntarily. No Fourth Amendment protection once you shared it. That constitutional protection you thought you had is gone the moment you click “post.”

Federal courts ruled in 2024-2025 that privacy settings create zero reasonable expectation of privacy from lawful subpoenas, zero reasonable expectation period. The Ninth Circuit said privacy settings are “a contractual arrangement with the platform, not a constitutional right”—they don’t care that you clicked “private,” they don’t care that you thought it was secure, they’re a knocking’ on platform doors with subpoenas anyway, getting everything you tried to hide. Prosecutors don’t need a warrant for your “private” account—an administrative subpoena, a simple piece of paper, is legally sufficient to get every single thing you posted.

What prosecutors access via subpoena regardless of your privacy settings: ALL posts public, and private, ALL direct messages even if you deleted the conversation, even if you thought it was gone forever, ALL photos, ALL location metadata showing exactly where you were standing, ALL deleted content within the platform’s retention window. Your locked account was legal theater, privacy theater that accomplished nothing except making you feel safe while prosecutors were collecting everything, building their case against you piece by piece.

Then there’s the screenshot problem. This is where things get absurd.

Screenshots from your friends’ phones are independently admissible under Federal Rule of Evidence 1004. Your friend who screenshotted your post—maybe thought it was funny, maybe saved it for later, maybe didn’t even think about it—prosecutors will subpoena their phone, will call your friend as a witness at trial, will put them on the stand and ask them to authenticate the screenshot. Prosecutors in 2024-2025 are actively seeking screenshots during investigation, they’re hunting for them like it’s their job, issuing “preservation letters” to friends and family telling them not to delete anything, telling them to preserve everything. You don’t control this evidence once you posted it. That control is gone.

And here’s what many, many criminal defense lawyers won’t tell you, won’t explain because they don’t understand it or they don’t want to fight it—the amount of data prosecutors can get from these platforms is staggering, completely staggering, more than you can imagine. We’re talking years of your digital life, every single interaction, every like, every comment you made on someone else’s post, every search you did on Instagram looking for someone, every story you viewed but didn’t react to. Everything.

Due to the fact that these platforms track absolutely everything you do, every single action you take, prosecutors don’t just get your posts—they get a complete reconstruction of your digital behavior, your patterns, your state of mind over time, your entire digital existence. Your attorney—if you or a loved one has hired the wrong defense lawyer, someone who doesn’t understand technology, who doesn’t know how to challenge this stuff, who’s just focused on getting along with prosecutors—your attorney might tell you “there’s nothing we can do about the social media evidence,” might tell you to just accept it, just plead guilty, and hope for mercy. Dead wrong.

There’s always something to challenge. Always authentication issues, metadata inconsistencies, chain of custody problems, Rule 403 arguments that the prejudice outweighs the probative value. But you need attorneys who know how to find these issues, who know how to attack the evidence at every single stage. Many attorneys won’t do this because they’re more focused on their relationship with prosecutors, and judges than your outcome—they’re worried about being seen as “difficult,” about burning bridges with the DA’s office.

Not here.

Metadata Is the Real Weapon

You were panicking about what the posts said. Wrong focus. You should’ve been panicking about the invisible data attached to every single post you make—IP addresses, GPS coordinates, device IDs, timestamps down to the second. That’s what prosecutors actually use to destroy your defenses.

Every post includes metadata your eyes never see. IP address traces back to your physical location. Device ID proves YOUR specific phone or computer, the one in your pocket right now, the one you’re holding. GPS coordinates show exactly where you were standing, down to the street address, sometimes down to the exact building. Timestamp proves when, down to the second.

Prosecutors use metadata to prove: (1) YOU posted it, not someone who hacked your account like you’re gonna try and claim, (2) you posted from YOUR device, your specific device, not a shared computer at the library like you’re gonna say, (3) you posted from a SPECIFIC location that contradicts your alibi or places you right at the crime scene when you said you were somewhere else, when you swore you were home.

The photo of you holding the gun was bad for your case. Our attorneys could’ve maybe argued that’s someone else in the photo, poor image quality, it’s circumstantial. But the GPS coordinates embedded in that photo—invisible data you didn’t even know was there, data you couldn’t see—proving you were standing at the crime scene at 1247 Oak Street on March 15th at 11:47 PM, when you told police you were home in bed, when you swore you were nowhere near there—that destroyed your alibi. Metadata doesn’t lie.

You might try, and argue shared device, public WiFi, account hacking—”someone else must’ve used my phone”—but metadata creates a steep uphill battle that most defendants lose, that almost everyone loses. When the IP matches your home address, the device ID matches your phone’s unique identifier, and the GPS coordinates match your commute route—the “someone else used my account” defense fails. Prosecutors will put a metadata expert on the stand: “This data proves the defendant posted this from his phone, from his location, at this exact time. No doubt about it.”

Your Next Move

You have exactly one opportunity to challenge this—one shot—the suppression hearing, which happens 30-60 days from now. After that hearing, if the evidence is admitted, it’s admitted for trial permanently. This is your decision point.

Our attorneys file Federal Rule of Evidence 901 authentication challenges arguing insufficient foundation to prove YOU posted this content. We file Rule 403 challenges arguing unfair prejudice substantially outweighs probative value. We expose metadata inconsistencies, chain of custody gaps, screenshot authenticity problems.

Outcome probability: 40-60% chance we suppress some evidence, 20-30% chance we suppress all social media evidence if we can show authentication failures. Not guaranteed, but it’s your only chance.

Timeline for suppression motion: We need to file within 30 days from arraignment. That means our attorneys need to analyze all metadata within 14 days, identify authentication weaknesses within 21 days, and draft the motion by Day 28. If you’re calling us on Day 40, we missed the deadline entirely. Time-sensitive.

Most criminal defense attorneys focus on their relationship with prosecutors, and judges, want to be liked, want to be seen as “reasonable.” They don’t challenge questionable evidence because they don’t want to burn bridges with the DA’s office. That approach fails when prosecutors have strong social media evidence. Being “reasonable” means accepting a plea deal instead of fighting admissibility.

The Spodek Law Group is a second-generation criminal defense law firm with over 40 years of combined experience, with many, many years defending these exact cases. Our managing partner, Todd Spodek, was the lawyer for Anna Delvey—whose Instagram persona of a wealthy German heiress was used by prosecutors to establish intent to defraud. We fought that case in the Southern District of New York against prosecutors who built their entire case around social media posts. The case was covered by the New York Post, Newsweek, Fox News before becoming a Netflix series.

We’ve defended high-profile federal prosecutions where social media was the entire narrative. We’ve seen every tactic they use. Metadata authentication. Screenshot compilations. Timeline reconstructions. Consciousness of guilt arguments based off deletion. We know how prosecutors use this evidence because we’ve defended the cases they used to establish these tactics.

Unlike other law firms who prioritize their professional relationships over your outcome—who care more about being liked than winning, who are more worried about their reputation with the DA than getting you the best result—our attorneys challenge social media evidence at every single stage. We attack authentication using metadata inconsistencies. We argue Federal Rule of Evidence 403 prejudice. We expose timeline gaps in deletion consciousness of guilt arguments. We challenge screenshot authenticity, and chain of custody. We fight admissibility before trial.

Social media evidence doesn’t sleep. Neither do we. Our attorneys are available 24/7 to assess your social media exposure, identify what prosecutors likely already have, and build your defense strategy around challenging admissibility before the suppression hearing deadline passes.

If prosecutors mentioned your social media in court, if you received discovery showing deleted posts you thought were gone forever, if your attorney told you “there’s nothing we can do about the social media evidence”—you need a second opinion from attorneys who actually fight this evidence.

Call us at 212-300-5196.