We are excited to announce distinguished Title IX attorney Felice Duffy has joined the national Title IX powerhouse law firm of Nesenoff & Miltenberg LLP.

CALL US 24/7 AT 212-736-4500

Title IX & Student Conduct Code Blog

Nesenoff & Miltenberg, LLP


A key part of a Title IX or College Conduct Code violation investigation is the gathering and presentation of evidence. Compared to previous decades, electronic evidence from digital devices and social media are now being collected and used during these investigations. Your cellphone is constantly aware of your specific location and social media posts can reveal motives and activities that otherwise would have remained secret.

Imagine the following situation: A young girl is driving and slams into another vehicle, killing her two best friends. The driver is suspected of driving under the influence of alcohol and police arrest her. After an investigation, authorities discover that the driver Tweeted the message “2 drunk 2 care” just before the accident took place. Prosecutors then use the information from Twitter to prove the driver was intoxicated.

The above situation actually happened a few years ago in Florida, and a 22-year-old woman pled guilty to two counts of DUI manslaughter and was sentenced to 24 years in prison and the permanent revocation of her driver’s license.

This type of situation is becoming increasingly common. Investigators have used emails, texts, online messages, and social media activity in many school shooting cases to determine the motive and intent of the shooters. However, electronic communications can be used in any type of investigation, including college investigations regarding conduct code or Title IX violations.

On the other hand, defense attorneys can use social media and electronic communications evidence to challenge allegations. For instance, if someone sends a text that expresses regret about sleeping with a person, then later accuses that person of rape, a good defense attorney can use that text conversation to demonstrate a false accusation. This is only one of many ways that this type of evidence can actually help a defendant’s case.

Deciding What Electronic Evidence Can Be Used

Courts and school disciplinary boards have increasingly had to grapple with how to authenticate electronic communications or social media evidence to make sure it is what it claims to be and that it is reliable before admitting it. You need an attorney who understands the rules of evidence and how to keep unreliable electronic or social media evidence out and how to get the good evidence up front and center.

Generally, electronic evidence must pertain to the case, which means it tends to prove a fact in dispute. The party presenting the evidence must prove it is authentic—that it comes from the claimed source. For example, it must be proven that a text actually came from a specific person’s phone. Even if evidence is relevant and authentic, the evidence can’t be unfairly prejudicial to the defendant.

Defending Against Social Media Evidence

If electronic or social media evidence is allowed to be presented against you, your attorney should know how to defend against it. Your attorney can do this by:

  • Attacking the source of the evidence – Was the evidence actually obtained from your account or device? Could someone else have used or hacked your account? Is it possible that the evidence was forged or generated using “deepfake” technology?
  • Making sure the evidence is presented in context – Isolated posts or brief exchanges taken out of context can make a defendant look guilty. The people judging the outcome of your case should hear the whole story regarding the statements to make a proper decision.
  • Attacking the credibility of the poster – If the accused party was not the communicator, would the person have a motive to send or write untrue or misleading texts, emails, or posts?
  • Using other evidence to prove what the poster said could not have happened – If someone “checks in” to a place and “tagged” you where the crime was committed, you can still prove an alibi or present other evidence that you were not actually there.

Call a National Student Defense Lawyer Today

Social media and electronic communications will continue to be important evidence in college investigations. You need an attorney who stays up to date on evidence trends and who can provide you with the best possible defense. Call Nesenoff & Miltenberg, LLP at (212) 736-4500 or write us online for assistance today.