by Michele Lorbieski Anderson
Managing Associate
Frost Brown Todd
201 North Illinois Street, Suite 1900
Indianapolis, IN 46244-0961
317-237-3216
manderson@fbtlaw.com
Attorney Profile Webpage

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All of the social media sites and applications available today share one thing in common: the users provide the content.  As such, social media can be a good source of electronically stored information (“ESI”) about those users, most commonly in the form of pictures, statements, or videos.  The phrase “you can’t trust everything that you see on the internet” hints at the most obvious barriers to the admission of evidence from social media, which are authentication and hearsay.

I.  OVERCOMING AUTHENTICATION HURDLES

Only one published decision has held that screenshots of Facebook pages and YouTube videos retrieved from a Google server were self-authenticating business records under Federal Rule of Evidence 902(11).  The court admitted the pages and videos into evidence because they were accompanied by affidavits from Facebook and YouTube records custodians verifying that the Facebook pages and YouTube videos had been maintained as business records in the course of regularly conducted business activities, and that Facebook and Google create and retain such pages and videos when (or soon after) their users post them through use of the Facebook or Google servers. [1]

No other federal or state court has held that ESI from social media is self-authenticating.  Therefore, if a case is outside of the Fourth Circuit, or a records custodian does not provide an affidavit, the ESI needs to be authenticated.  The requirement of authentication is seemingly easy because the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it to be. [2]  However, authenticating a statement, video, or picture from a social media site or application can be difficult, particularly for evidence that does not contain metadata. [3]  State and federal courts examining the proper methods to authenticate social media evidence have reached different conclusions on the standard a party must satisfy.  Therefore, when seeking to introduce ESI from social media, consider using all of the available methods of authentication, including witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence in question.

Testimony from the owner of the social media can be the easiest way to authenticate evidence from social media. [4]  In a case where the husband admitted to owning the Facebook page, the question of whether he authored the posts on his own Facebook page affected the weight of the evidence, not its admissibility, and was ultimately an issue for the jury to decide.  [5]

Even if the alleged owner of the social media is not available to testify, or refuses to adopt the statement, picture, or video as their own, the evidence may still be authenticated. [6]  “A subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.” [7] Courts in various jurisdictions have held that evidence from social media may be authenticated through circumstantial evidence. [8]

In Burgess v. State, witnesses testified that appellant was known by the MySpace profile owner’s name ‘Oops’ and that he was a member of the gang Murk Mob.  An officer testified that he confirmed appellant’s nickname, ‘Oops’, by speaking with his sister, and used that information to access a MySpace profile page under that nickname. [9] The officer then printed the profile for that MySpace page from a computer while observing the profile page, thus the court determined that the printout fairly and accurately depicted what he observed on the computer screen. [10]

In Tienda v. State, a combination of facts were used to authenticate a MySpace page, including:  (1) numerous photographs from the MySpace page of the appellant with his unique arm, body, and neck tattoos, as well as his distinctive eyeglasses and earring; (2) the reference to the victim’s death and music from his funeral on the MySpace page; (3) the references to the appellant’s “Tango Blast” gang on the page; and (4) the messages referring to a shooting. [11]  Taken together, the court held that these facts were sufficient to support a finding that the MySpace pages were created and maintained by the appellant. [12]

Similarly, in Campbell v. State, the following facts were used to authenticate messages from defendant Campbell’s Facebook page:  (1) the similarities between the speech pattern presented in the messages and Campbell’s speech pattern at trial; (2) references to the incident that gave rise to the criminal case in the messages sent a few days after the incident; (3) testimony establishing that only Campbell and his girlfriend had access to Campbell’s Facebook account; and (4) testimony from Campbell’s girlfriend that she did not have access to Campbell’s Facebook account at the time the messages were sent. [13]  Based on this evidence, the court concluded that there was prima facie evidence such that a reasonable jury could have found that the Facebook messages were created by Campbell. [14]

The potential for abuse and manipulation of social media by someone other than its purported creator has led some courts to require a greater degree of authentication. [15]  In Griffin, the court excluded evidence from a MySpace page, finding that the State did not properly authenticate the pages allegedly printed from the defendant’s girlfriend’s MySpace profile because the State failed to offer any extrinsic evidence that described MySpace, established how the officer obtained the pages in question, or adequately linked both the profile and the posting to the alleged declarant. [16]  Other courts have refused to admit ESI from social media based on similar reasoning. [17]

In sum, because courts may apply a heightened standard for the authentication of ESI from social media, authentication issues should be considered during discovery, including:

• Illicit deposition testimony from the user or author attesting to the authenticity of the content, how secure the account was, and who had access to the account.

• Illicit deposition testimony from the recipients of particular messages from the author, or members within the users’ social network attesting to the authenticity of the content.

• Inspect the computers or devices on which the content was created in an effort to discover evidence of who created the particular ESI.

• Request account information and metadata from the social media provider(s).

• Request an affidavit from the records custodian of the social media provider establishing that content from the site or application is a business record.

II.  THE HEARSAY RULE APPLIED TO SOCIAL MEDIA

Cases discussing the admission of ESI from social media over hearsay objections are much more straightforward than cases involving the authentication of ESI from social media.  Most cases in which the hearsay rule has been discussed involve the admission of statements from social media that were admitted as party admissions under Federal Rule of Evidence 801(2), or a similar state rule. [18]

Although statements on social media have most often been admitted as party admissions, certain hearsay exceptions may also provide a basis for the admission of statements on social media, including:  Present Sense Impression (Fed. R. Evid. 803(1)); Excited Utterance (Fed. R. Evid. 803(2)); Then-Existing Mental, Emotional, or Physical Condition (Fed. R. Evid. 803(3)); Statement Against Interest (Fed. R. Evid. 804(b)(3)); and the Residual Hearsay Exception (Fed. R. Evid. 807).

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[1]  United States v. Hassan, 742 F.3d 104, 132-34 (4th Cir. 2014).

[2]  Fed. R. Evid. 901.

[3]  Secondary data that organize, manage, and facilitate the use and understanding of primary data.  BLACK’S LAW DICTIONARY (9th ed. 2009)

[4]  See State v. Jones, 2014 WL 802022 (Kan. Ct. App. 2014) (husband accused of assaulting his ex-wife admitted that he was the owner of a Facebook page that included posts allegedly from the husband detailing what he was going to do to his ex-wife, including breaking her bones).

[5]  Id. at *1, *6.

[6]  See Parker v. State, 85 A.3d 682, 688 (Del. 2014); Burgess v. State, 742 S.E.2d 464 (Ga. 2013); Simmons v. Commonwealth, 2013 WL 674721 (Ky. 2013); Tienda v. State, 385 S.W.3d 633 (Tex. App. 2012); Campbell v. State, 382 S.W.3d 545 (Tex. App. 2012).

[7]  Fed. R. Evid. 903.

[8]  See Parker, 85 A.3d at 688 (Facebook posts were adequately authenticated through witness testimony and circumstantial evidence); Burgess, 742 S.E.2d 464 (MySpace profile information printout was properly authenticated by surrounding circumstantial evidence about Burgess’s nickname and gang affiliation); Simmons, 2013 WL 674721 (Facebook messages were properly authenticated and admissible through witnesses that that the messages were what they purported to be); Tienda, 385 S.W.3d 633 (MySpace information was properly authenticated based on circumstantial evidence contained on the MySpace page); Campbell, 382 S.W.3d 545 (Facebook messages were authenticated by the circumstantial evidence within and surrounding the Facebook messages in question).

[9]  Burgess, 742 S.E.2d at 467.

[10]  Id.

[11]  Tienda, 385 S.W.3d at 645.

[12]  Id.

[13]  Campbell, 382 S.W.3d at 553.

[14]  Id.

[15]  See Griffin v. State, 19 A.3d 415, 424 (Md. 2011) (MySpace information was not properly authenticated because there was a possibility that someone other than the defendant’s girlfriend was posing as the defendant’s girlfriend).

[16]  Id. at 423.

[17]  See United States v. Winters, 530 F. App’x. 390, 395-96 (5th Cir. 2013) (photographs on a defendant’s Facebook page were not properly authenticated because a “photograph’s appearance on a personal webpage does not by itself establish that the owner of the page possessed or controlled the items pictured.”); State v. Eleck, 23 A.3d 818 (Conn. App. Ct. 2011) (Facebook messages were not properly authenticated because the alleged sender denied writing them in her testimony and provided a plausible alternative explanation for their existence on her Facebook page); Commonwealth v. Williams, 926 N.E.2d 1162 (Mass. 2010) (messages from MySpace were not properly authenticated due to lack of testimony regarding how secure the MySpace page was and who had access to the page).

[18]  See People v. Bell, 2013 WL 1748603 (Mich. Ct. App. 2013) (Defendant waived his hearsay challenge when defense counsel stipulated to the admission of the Facebook messages at trial and any Facebook or text message that defendant sent to the victim would constitute a party admission and would not be hearsay); State v. Church, 2013 WL 2641338 (Tenn. Crim. App. 2013) (information gathered from the MySpace account was not inadmissible hearsay because it was a party admission); Smith v. State, 2013 WL 2400393 (Miss. Ct. App. 2013) (Facebook messages contained in automatic emails were not hearsay because they were not assertions of a human declarant and messages sent by defendant were also party admissions) vacated in part, 136 So. 3d 424 (Miss. 2014) (the Facebook posts were not properly authenticated, but the admission of evidence was harmless error due to defendant’s overwhelming guilt); Targonski v. City of Oak Ridge, 2012 WL 2930813 (E.D. Tenn. 2012) (Facebook messages admissible non-hearsay party admissions); People v. Oyerinde, 2011 WL 5964613 (Mich. Ct. App. 2011) (Facebook messages admissible non-hearsay party admissions); State v. Coe, 2010 WL 1694474 (Ohio Ct. App. 2010) (photographs were admissible non-hearsay party admissions).