By: Maryssa Simpson
Social media has increasingly been used as evidence, often to leverage a position at mediation or in a deposition. The public or semi-public nature of social media sites allows litigators to collect information without formal discovery.[1] However, there is little authority as to how social media may be actually introduced and used in the courtroom. An understanding of the authentication and admissibility issues is essential in order to both effectively use and/or exclude social media evidence at trial.
Texas Rule of Evidence 901(a) provides that authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
Social media sites are not evidentiary safety zones. Information can be collected with minimal effort—then the battle becomes admissibility based on metadata or tesimony. “Metadata” is essentially a digital footprint left by a social media user. Relevant fields include username, IP address, stated location, user ID number, email address registered to the account, or date and time stamps. However, if it is not possible to obtain such information, the pictures and statuses may be admissible if there is enough evidence, such as testimony of “identifying characteristics” to support a finding that the Facebook pages/Twitter status/etc. belonged to a litigant and that he created and maintained them.[2]
In Tienda v. Texas,[3] a criminal case, the State successfully introduced evidence from Tienda’s MySpace page that tended to implicate Tienda. The circumstantial evidence consisted of relevant metadata fields including Tienda’s username—which was consistent with his commonly-known nickname, his stated location, his user ID number, an email address registered to the account, and several photos of Tienda with date and time stamps. The court stated this was “ample circumstantial evidence—taken as a whole with all of the individual, particular details considered in combination—to support a finding that the MySpace pages belonged to the Appellant and that he created and maintained them.”[4]
Unlike Tienda, where ample metadata existed, in In re A.D.W., an Iowa case, authentication of Facebook posts was attempted through witness testimony.[5] Photographs from Facebook were ultimately inadmissible in A.D.W. because the witness could not offer personal knowledge tying the Facebook page owner to the subject depicted in the photographs. The witness could not say who took the photographs, could not verify who posted them on Facebook, and could not verify whether the Defendant was even aware that the photographs appeared on her Facebook page. During cross-examination, the Defendant even identified her Facebook page and acknowledged posting certain photographs of herself. However, the Court ultimately held that the photographs were inadmissible without knowing more about their provenance.
As A.D.W. demonstrates, witness testimony alone may not satisfy the “identifying characteristics” test. Challenges to admissibility of photographs or written messages may be successful if the proper foundation has not been laid to satisfy Rule 901. No matter what characteristics are used in admitting the evidence, the most important evidentiary battle is whether the jury will be able to see it. Attorneys can avoid having to depend upon a witness, hostile or otherwise, by providing further testimony about the method of collection or establishing metadata fields.
Highlighting distinctive characteristics of the social media pages will also provide context. Once the bell has been rung, it is impossible to unring it. In other words, a judge or jury can’t un-see evidence, and a witness’s credibility will be affected by denying a connection to his or her own social media account.
[1] See H. Christopher Boehning & Daniel J. Toal, “Authenticating Social Media Evidence,” New York Law Journal Vol. 245, No. 65, pg. 3, Oct. 2, 2012.
[2] See, e.g. Tienda v. State, 358 S.W.3d 633, 638–39 (Tex. Crim. App. 2012)(listing direct testimony from witness with personal knowledge as one means to authenticate information stored on electronic media); Campbell v. State, 382 S.W.3d 545 (Tex. App.—Austin 2012, no pet.)(Facebook messages allegedly sent by defendant were admissible; messages purported to be sent from an account in defendant's name to an account in complainant's name, referenced underlying incident and potential charges, were sent just a few days after incident, were consistent with speech patterns used by defendant, only defendant and complainant had ever had access to defendant's account, and complainant testified that she did not have access to that account at the time messages were sent), Manuel v. State, 357 S.W.3d 66 (Tex. App.—Tyler 2011, pet. ref’d)(Relying on Fed. R. Evid. 901(b)(4) and the reply-letter doctrine to conclude that trial court properly admitted Facebook messages because a reasonable fact-finder could find that Defendant sent the electronic communications when he responded to a message sent to his Facebook).
[3] Id.
[4] Id.
[5] In re A.D.W., 821 N.W.2d 778 (Iowa Ct. App. 2012).