INTERNET LAW - Authenticating Evidence Obtained from a Social Networking Profile

Martha L. Arias, Immigration and Internet Law Attorney, Miami; IBLS Director
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The use of social networks such as Facebook, MySpace, Twitter, and many others, is as the practice of a religion; you do as much or as little as you want, some barely use it some become fanatics. It is interesting to see how some social networking users provide "more-than-needed” information in their walls and profiles; this is similar to those who use the small groups from a church to “openly confess” their mistakes. Well, just as those church small groups confessions have been used as evidence against respondents in criminal cases, information posted in social networking sites, including profiles, can be used as evidence in courts. The question raised in this article is how can attorneys authenticate such evidence?

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The use of social networks such as Facebook, MySpace, Twitter, and many others, is as the practice of a religion; you do as much or as little as you want, some barely use it some become fanatics.  It is interesting to see how some social networking users provide "more-than-needed” information in their walls and profiles; this is similar to those who use the small groups from a church to “openly confess” their mistakes.  Well, just as those church small groups confessions have been used as evidence against respondents in criminal cases, information posted in social networking sites, including profiles, can be used as evidence in courts.  The question raised in this article is how can attorneys authenticate such evidence?

The United States (U.S.) Federal Rules of Evidence (Fed. R. of E.) require authentication of evidence as the basis for admissibility. Article IX, Rule 901.  Likewise, state statutes containing rules of evidence follow the Fed. R. of E. or even expand those rules regarding admission of evidence in civil and criminal courts.  For instance, Maryland rule of evidence regarding authentication, Md. R. 5-901(a), establishes that “authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Also, Md. R. 5-901(b)(4), as an example, states that to authenticate circumstantial evidence such as “appearance, contents, substance, internal patterns, location, or other distinctive characteristics, [it] may be sufficient to establish that the offered evidence is what it is claimed to be.” In the Maryland criminal case of Griffin v. State, 192 Md. App. 518, the Court of Special Appeals had to decide whether information obtained from a social networking profile was properly authenticated to be admitted into evidence. 

Griffin v. State was a murder case.  The defendant was accused of shooting and killing a man in the bathroom of a public place. The first trial ended in mistrial. During the second trial, the testimony of one of the state key witnesses was inconsistent with what that witness had said during the first trial.  Once questioned about these contradictions, the witness said that the Defendant's girlfriend threatened him before the first trial. Then, to corroborate the state witness" testimony, the state introduced into evidence a printout from the social networking MySpace, which allegedly belonged to the defendant’s girlfriend. The printout said in part: "JUST REMEMBER, SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!"  The trial court convicted the defendant.  On appeal, one of the questions presented was whether the trial court erred in admitting into evidence the social networking printout.

On Appeal, the defendant alleged that the trial court erred in admitting into evidence the printout from MySpace profile, claimed to be from the defendant’s girlfriend, because this evidence was not properly authenticated and its prejudicial effect outweighed its probative value.  The appellate court held that the social networking printout from the defendant’s girlfriend’s profile was properly admitted and authenticated as circumstantial evidence.  Indeed, the court said, “there is no reason why social media profiles could not be circumstantially authenticated in the same manner as other forms of electronic communication - by their content and context.”  The witness testified that he believed the social network profile belonged to the defendant’s girlfriend based on a picture of the defendant and his girlfriend posted on MySpace, the girlfriend’s birth date posted in MySpace and matching her real birth date, and the reference made in the profile to “Boozy,” the nickname the girlfriend used to refer to the defendant.   Further, the appellate court held that “the evidence was probative, as it was offered to support a witness's explanation for the inconsistencies in his testimony from the first trial to the second trial, namely that he had been threatened by the girlfriend.”

Thus, this Maryland court is accepting the volunteered-information provided by social networking users, and permits its authentication as circumstantial evidence in court proceedings. Isn’t that true that social networking sites make life easier for prosecutors, private investigators, and the police?     

Martha L. Arias, Immigration and Internet Law Attorney, Miami; IBLS Director

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