Social media has a big influence in our lives in today’s age. Social Media is defined by Merriam-Webster as forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content. There are various social media platforms such as Facebook, Instagram, YouTube, Twitter, LinkedIn, Snapchat, Craiglist, Reddit, MySpace, Yelp, and many more. Social media is a treasure trove of information for attorneys. For example, Facebook has 2 billion users in 2017. Every 60 seconds there are 510 comments posted, 293,000 updated statuses, and 136,000 uploaded photos. This Information on social media “lives forever” and is easily accessible. But due to social media being largely unregulated or unsupervised there are more than 83 million fake Facebook profiles.
To use any of the social media post by an individual there are many hurdles to get over. Authentication is the biggest hurdle when trying to bring social media into any hearing. Pursuant to Federal Rules of Evidence 901 states that the proponent must come forward with evidence “sufficient to support a finding that the item is what the proponent claims it is.” The purposed of authentication requirements is to prevent fraud and innocent mistake by the judge or jury. If the judge determines that the foundation provided was sufficient, the content will be introduced, at which point the jurors would decide credibility and the weight to attach to it.
There are three steps to authentication of a post from a social media site. The first step is to print out the document, a post for social media post cannot be admitted by phone or computer. It is not required to have it printed it out but it is an easier way to have it admitted. Social media can be introduced using testimonial evidence if the testifying witness has personal knowledge of the social media information; has the ability to communicate the testimony; takes an oath or makes an affirmation to tell the truth; and claims to recall what they are testifying. The second step is demonstrating that the evidence being admitted is from the social media site in question. This can be done by testimony of a witness, “I went on John Doe’s Instagram account and I printed it out.” The final step is attribute the social media evidence to a specific person. There are two approaches to accomplish the third step, The Maryland approach, the higher standard, and the Texas approach, the most used.
The Maryland approach is illustrated in Griffin v. State, 19 A.3d 415. Defendant was charged with second-degree murder, First-degree assault, and use of a handgun in commission of a felony. The State attorney wanted to introduce MySpace posts of Defendant’s girlfriend, Jessica Barber, to show why the witness changed his testimony. The State attempted to get the evidence through law enforcement testimony. The officer testified that they know the post where made by Barber because the MySpace page had a picture of Barber with the defendant, referenced her children, had her birthdate and referenced the Defendant’s nickname. The court held that the trial court was wrong for admitting the post because the trial judge “failed to acknowledge the possibility or likelihood that another user could have created the profile in issue or authored the ‘snitches get stiches’ posting.” The appellate court suggested the methods to authenticate the postings were asking the girlfriend if she created the post, search the internet history of the hard drive of the computer that made the post, or obtain information from the MySpace.
The Texas approach is illustrated in Tienda v. State, 358 SW 3d 633. Tienda was convicted of murder during a drive by shooting. Tienda appealed the decision claiming that the trial court should not have admitted the MySpace page alleged to be managed by the Defendant. The MySpace page was registered to a person with Defendant’s nickname and legal name, the photographs of the MySpace profile were clearly of the defendant. And Defendants profile referenced the victim and his murder along with Defendants home monitoring equipment. The Court held there was enough circumstantial evidence “to support a finding by a rational jury that the Myspace pages that the State offered into evidence were created by defendant.” Once there is a Prima Facia showing it is up to the jury to assess the weight. The factor to admit evidence is the Distinctive factors of the account, the access and control of the account and laying a proper foundation for the content.
If you have further questions regarding social media and authentication of content, our experienced associates are available and ready to answer your legal concerns. To schedule an appointment you may call or email us at (786) 836-6787 / info@epgdlaw.com.
*Disclaimer: This blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*
