Article: November 2017: Trial Practice Update

The Admissibility of Social Media Evidence. The rise of social media continues to have profound effects on litigation. Attorneys who embrace social media as part of an overall litigation strategy can reap substantial benefits. Today around seven-in-ten Americans use social media to stay in touch, engage with content, and share information. Social media can contain critical evidence, such as party admissions, inculpatory or exculpatory photos, and extensive communication records. While traditional evidentiary concepts still govern the admissibility of social media evidence, a proper understanding of the unique challenges associated with social media evidence will maximize its effectiveness.

Authentication is often the biggest obstacle to admitting social media evidence. In the age of aliases, phishing, and hackers, genuine concerns that such evidence is faked or forged has led to widely disparate decisions on authentication. In recent years, two main lines of cases have emerged. Courts in one line of cases advocate for stricter scrutiny of social media evidence, excluding such evidence absent substantial proof of authenticity. Courts in the other line of cases take a more traditional approach, admitting social media evidence so long as proof of authenticity suffices for a reasonable jury to find the evidence authentic.

The first line of cases is best exemplified by Griffin v. State, 419 Md. 343 (2011). There, the state sought to introduce a post from the MySpace profile of the defendant’s girlfriend, stating, “snitches get stiches.” Although the state showed that the profile displayed the girlfriend’s photo, birthdate, and location, the state did not ask the girlfriend to authenticate the post or provide electronic evidence showing the girlfriend authored the post. The Maryland Court of Appeals held the post was not properly authenticated, explaining that the trial court “failed to acknowledge the possibility or likelihood that another user could have created the profile in issue or authored the ‘snitches get stitches’ posting.” See id. at 423. The Court said social media evidence may be authenticated by showing the purported creator made the post via (1) testimony from the purported creator, (2) evidence from the purported creator’s internet history and hard drive, or (3) evidence directly from the social media platform. Id. at 427-28. Several courts have followed Griffin’s reasoning out of the concern that social media evidence could be a fake, a digital alteration of an alleged creator’s profile, or a posting by another using the alleged creator’s profile. Smith v. State, 136 So. 3d 424, 434 (Miss. 2014); State v. Eleck, 130 Conn. App. 632, 642 (2011); see also Com. v. Williams, 456 Mass. 857, 868 (2010); People v. Beckley, 185 Cal. App. 4th 509, 515 (2010).

The other line of cases is best represented by Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012). There, the state introduced the profiles of three MySpace accounts that implicated the defendant in a murder. The profiles displayed photographs and other personal information of the defendant, including his gender, birth year, and location. Several messages originating from the profiles also complained about wearing an electronic monitor, which the defendant also wore. The Court of Criminal Appeals of Texas held the trial court properly admitted the profiles over the defendant’s authenticity objections. As the Court explained, the proponent only needs to make a preliminary showing to the trial court that “a jury could reasonably find [the] proffered evidence authentic.” The Court added that the showing may be made directly or circumstantially, and that the circumstantial indicia here sufficed to satisfy that burden. Courts in many other states have followed Tienda’s rationale. See, e.g., State v. Burns, 2015 WL 2105543, *12 (Tenn. Crim. App. May 05, 2015); State v. Gibson, 2015 WL 1962850, at *11 (Ohio Ct. App. May 1, 2015); Com. v. Foster, 20 N.E.3d 967, 971 (Mass. Ct. App. 2014); State v. Snow, 437 S.W.3d 396, 402-03 (Mo. Ct. App. 2014), State v. Jones, 318 P.3d 1020, at *6 (Kan. App. 2014) (Table); Burgess v. State, 742 S.E.2d 464, 467 (Ga. 2013); State v. Assi, 2012 WL 3580488, at *3 (Ariz. Ct. App. Aug. 21, 2012); see also People v. Valdez, 201 Cal. App. 4th 1429, 1435-36 (2011); People v. Clevenstine, 891 N.Y.S.2d 511, 514 (2009).

Other common evidentiary hurdles to admissibility, such as relevance, hearsay, and the best evidence rule do not raise major issues unique to social media evidence. An opposing party’s social media accounts can be a resource for evidence related to damages and other key issues, but courts may exclude some social media evidence to the extent it is unduly prejudicial, irrelevant, or cumulative. See, e.g., People v. Nunn, No. 3-14-0137, 2016 WL 2866361, at *8 (Ill. Ct. App. May 16, 2016) (defendant’s Facebook message relevant to show intent and impeach witness); Nucci v. Target Corp., 162 So. 3d 146, 152 (Fla. Dist. Ct. App. 2015) (plaintiff’s pre-accident Facebook photos “powerfully relevant” to personal injury damages); Quagliarello v. Dewees, 2011 WL 3438090, at *3–4 (E.D. Pa. Aug. 4, 2011) (plaintiff’s MySpace photos partying relevant to emotional distress damages); Sedie v. United States, 2010 WL 1644252, at *23 (N.D. Cal. Apr. 21, 2010) (plaintiff’s MySpace profile relevant to rebutting his claim his life is “hell on earth”). But see Engman v. City of Ontario, 2011 WL 2463178, at *11 (C.D. Cal. June 20, 2011) (plaintiff’s MySpace profile about alcohol irrelevant).

Similarly, the hearsay rules applicable to other types of evidence apply just as readily to social media evidence. For example, an opposing party’s statements in Facebook messages are not hearsay. See Fed. R. Evid. 801(d)(2); U.S. v. Brinson, 772 F.3d 1314, 1320 (10th Cir. 2014) (defendant’s Facebook messages not hearsay); People v. Oyerinde, 2011 WL 5964613, at *10 (Mich. Ct. App. Nov. 29, 2011) (same); cf. U.S. v. Encarnacion-Lafontaine, 639 F. App’x 710, 713 (2d Cir. 2016) (Facebook threats not offered for truth). In the future, courts may address more novel hearsay issues, such as whether a party’s “retweets” and “likes” constitute adoptive admissions, whether posts in “ALL CAPS” constitute excited utterances, or whether status updates are present sense impressions. Finally, although certain sophisticated software is available to obtain social media evidence, in many cases, the best evidence rule may be satisfied by taking a screenshot of the content, printing the content with the webpage and date in the header and footer, or obtaining a hard drive image. See, e.g., Fed. R. Evid. 1002-1004. As social media continues to grow and become embedded in our daily lives, attorneys should continue to give careful thought and planning to the admissibility of social