With the increasingly common use of various social media as a means of communication, more and more frequently Courts are faced with the question of whether the genuineness of these postings, text messages and chats is reliable enough to justify them being admitted into evidence, and to what extent they must be authenticated to be deemed admissible.
This spring, the Court of Appeals of Maryland revisited this issue in its review of three consolidated cases: Sublet v. State, 2015 Md. LEXIS 289 (2015), Harris v. State, 440 Md. 114, 99 A.3d 778, decision without published opinion (2014), and Monge-Martinez v. State, 440 Md. 114, 99 A.3d 778, decision without published opinion (2014).
Problems with Social Media Authentication and Development of a Standard
Before the use of typed words sent via an electronic medium became so prolific, the courts relied on traditional means of authentication such as obtaining testimony from a witness with knowledge of how a document was made, comparing handwriting samples, looking for fingerprints or even, for telephone calls, voice identification. But when the sender is an unseen person and the message is received electronically, many of these options for authentication disappear.
The Court of Appeals first recognized this problem with authentication in Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011), noting that the authentication of evidence derived from social networking can be problematic “because anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password[.]”Id. at 352, 19 A.3d 421. In Griffin, the Court rejected a printout of a screen shot from MySpace, a social media website, because the investigator who printed the document did not have any personal knowledge about who owned the website or who actually created the profile in question. Essentially, the witness was unable to prove that the page content was genuinely managed by the person he claimed it was managed by, or that she had posted the text within the screenshot. In Griffin, the Court reiterated that authentication could come through asking the purported creator if she created the profile and the posting in question. Id at 363, 19 A.3d 427. The Court also suggested that investigators could “search the computer of the person who allegedly created the profile and posting and examine the computer's internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.” Id. Alternatively, the investigator could “obtain information directly from the social networking website[,]” which would link together the profile and the entry to the person, or persons, who had created them. Id. at 364, 19 A.3d 428.
Between 2011 when Griffin was decided and today, cases have arisen across the country where social media evidence has served as a crucial piece of proof in litigation. In light of this trend and the instant actions, the Court chose to clarify their position and to set forth a more definitive standard for authentication.
The standard ultimately adopted by the Court for use in these and future cases entails two steps. In the first step, the judge determines if there is sufficient proof introduced so that a reasonable juror could find in favor of authenticity or identification. If there is not, the information is not admitted. If there is, the information will be admitted and then, as the next step, the jury will be instructed that they must make a determination as to whether the evidence is what its proponent claims. At the same time, the opposing party is free to challenge the evidence in ways that go to its weight, such as arguing the interpretation, reliability or lack of importance of the information.
Applying the New Standard
In each, Sublet, Harris, and Monge-Martinez, the admission of different electronically stored social networking evidence was sought.
In Sublet, at issue was the admission of Facebook message posts where the witness alleged to have posted not only denied posting the messages in question, but testified that she had shared her password with others who have in the past and could ostensibly, again, use her password to obtain account access. Additionally, her testimony was not refuted by an expert. Under the new standard, the content in question was not found to be reliable and was not admitted.
In Harris, messages were exchanged on Twitter between two parties. At trial, a police officer testified as an expert witness. He provided independent verification of the identity of the holder of a Twitter account by using photos, tracking the account to a specific mobile phone, and via the substance of messages exchanged, which indicated direct knowledge of a specific situation that involved only a small group of individuals. The Court held that the trial court did not err in admitting the “direct messages” and “tweets” into evidence.
In Monge-Martinez, private one-on-one communications were sent through Facebook by the defendant apologizing to the victim for stabbing her. The defendant argued that because his profile did not include identifying information, the messages could not be authenticated. The Court disagreed, determining that the circumstantial evidence --- namely, that the victim could attest that Monge-Martinez had previously written message to her using that account, that the date and time stamps indicate the messages were sent soon after the stabbing, and that all messages were in Spanish and alluded to the stabbing – was enough to allow the messages into evidence.
Though the cases examined by the Court of Appeals are all criminal in nature, the decision has sweeping implications for both criminal and civil litigation. With a clearer and relatively low standard set forth for the admissibility of social media evidence, parties on both sides are now far more likely to seek to have such evidence admitted at trial, with the jury left to determine how much weight such information should hold. As a result, thorough advisements to our clients about posting online and comprehensive searches for a social media presence of witnesses, plaintiffs and our defendant clients becomes even more important in the preparation of a case for litigation.
Contributed by Lauren A. Seldomridge