Mike DeHaven: How to admit social media posts into evidence
Eric Schmidt, the Executive Chairman of Alphabet Inc. (formerly Google), has called the Internet “the first thing that humanity has built that humanity doesn’t understand, the largest experiment in anarchy that we have ever had.” Although Mr. Schmidt’s observation may well exemplify the general public’s view of the internet, relatively recent case law based upon firmly established legal principles and Rules of Evidence makes the process for attempting to admit internet-based information into evidence easy to understand.
“Free Boozy”
The first case in Maryland to address the admissibility of statements made via social media was Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011), where the State attempted to introduce a statement allegedly made by Griffin’s girlfriend, Jessica Barber, on her Myspace profile in an attempt to prove that, prior to trial, Ms. Barber had allegedly threatened another witness called by the State. The State printed out Ms. Barber’s Myspace profile, which contained what the State believed were “distinctive characteristics” and the following: “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”
The Griffin Court concluded that the trial judge abused his discretion in admitting Barber’s Myspace page, because the picture of Ms. Barber, coupled with her birth date and location, were not sufficient “distinctive characteristics” to be considered a self-authenticating document, given the prospect that someone other than Ms. Barber could have not only created the site, but also posted the “snitches get stitches” comment. 419 Md. at 357. The Court recognized that “the potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads…requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that Ms. Barber was its creator and the author of the “snitches get stitches” language.” Id. at 357-358.
The Sublet Trilogy
It took four years for Maryland’s highest court to again address the authenticity of social media. In Sublet v. State, 442 Md. 632, 113 A. 3d 695 (2015), the Court of Appeals consolidated three criminal appeals and made it clear that a trial judge must determine whether there is proof from which a reasonable juror could find that the (social media) evidence is what the proponent claims it to be. In other words, the trial judge acts as a proverbial gatekeeper in considering whether a proponent of evidence has laid a sufficient foundation to ensure that the trier-of-fact considers only trustworthy evidence.
In Sublet, defense counsel attempted to introduce 4 pages from a witness’s Facebook account that the witness disavowed creating. Sublet argued that pages were nevertheless admissible, because they “contained distinctive characteristics from which to confirm their authenticity.” Sublet at 672. The Court of Appeals held that the trial court did not err in excluding the admission of the Facebook statements, acknowledging that “when a witness denies having personal knowledge of the creation of the item to be authenticated, that denial necessarily undercuts the notion of authenticity.” Id. at 672
In Harris, the State called an expert witness who had retrieved direct messages and offered an opinion on the identity of the participants in a Twitter conversation, the statements made therein, and the times the direct messages were sent and received by the phone. Harris alleged the statements that came from his phone did not contain “distinctive characteristics” such that a reasonable juror could conclude that he made the statements. The admission of the expert testimony was upheld because the expert’s opinion, coupled with circumstantial evidence offered to prove the identity of the creator of the statements, was sufficient to allow a reasonable trier of fact to consider the evidence.
In Monge-Martinez, the State attempted to admit screen shots of Facebook messages that were printed out from the victim’s cell phone. The Court held that the trial court did not err in admitting messages the State alleged were written by the Defendant expressing remorse for an assault that he was alleged to have committed, noting that circumstantial evidence offered by the victim, who had dated the Defendant for more than a year before the evidence, could allow a reasonable juror to conclude that the Facebook messages were what the State claimed: An admission of guilt by the Defendant. Id. at 678.
CONCLUSION
When considering whether to admit any type of ESI, judges understand that the proffered evidence originated on a computer, and thus was capable of being altered from its original, “authentic” form. Therefore, litigators need to prepare well in advance of the trial date when considering how to secure the authenticity of ESI. In civil cases, the foundation for authenticating ESI is easily laid through discovery. For those who are unable to be proactive to ensure the authenticity of the proffered ESI, the creative litigator needs to follow the Court of Appeals rationale for admitting social media and phrase questions to lay a proper foundation to satisfy Rule 5-901.