RECORDS
YOU GOT THEM,NOW WHAT DO YOU
DO?
SOCIAL MEDIA
Facebook began in 2004
Facebook, LinkedIn, Twitter, Snapchat, Kik, Instagram, Youtube, Tumbler, Text ‘em
Given that the top three are just over a decade old, the admission of social media/digital evidence is still emerging law
Courts have struggled on how to handle social media.
Across the nation courts have applied different standards to electronic evidence.
SOME HAVE REQUIRED ENHANCED EVIDENCE
Griffin v. State, 19 A.3d 415 (Md. 2011) case reversed, in part, because admission of social media evidence and failure to demonstrate that someone else could have created postings
FACTS:MySpace post by defendant’s girlfriend that threatened witness. Officer testified that he searched, found and printed post. He believed to be defendant’s girlfriend based on: her picture identifier, user birthdate, claimed to have 2 children, use of defendant’s nickname, states she is living with defendant. Trial court found sufficiently authenticated based on totality of circumstances.
Appellate court overturned stating that a greater degree of authentication is required based on confounding aspects of social media.The court went on to identify proper means of authenticating printouts of posting on social media sites as follows:
1)ask purported creator if they created profile and adding posting in question
2)computer search of hard drive3)obtain information directly from social
networking site linking person establishing profile
LESSONS LEARNED FROM GRIFFINAND DISTINGUISHING FACTORS No documents were obtaining directly
from social media site Appears they did not call girlfriend as
witness Implication that even if you are denied
use of documents in your case, you may be able to use on cross-examination
Commonwealth v. Williams, 926 N.E.2d 1162 (Mass. 2010) reversed because of failure to present evidence of security of social media site, ability to access, and password requirements
OTHER JURISDICTION HAVENOT REQUIRED ENHANCEDEVIDENCE
Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) which rejected Griffin and held that authenticity of social media could be established by circumstantial indicia of authenticity demonstrating connection to defendant.
Specifically, the Appellate Court held that there was ample circumstantial evidence that defendant had created and maintained the MySpace account in question.
Interestingly, the Court distinguished social media evidence from emails, which come from a specific address, or text messages from a specific number.
State v. Assi, 2012 WL 3580488 (Ari. Ct. App. Aug. 21, 2012) which held circumstantial evidence such as defendant’s use of his nickname and testimony of another witness familiar with his postings
The State presented information from police gang records regarding defendant’s nickname and gang affliation, when defendant arrested he admitted both, and defendant’s father called to testify that defendant had a MySpace page and he had seen photographs on defendant’s page.
BOTTOM LINE – CASES ACROSS NATION FALL INTO 2 CATEGORIES Skepticism about admitting and requirements
(often unreasonable and unattainable) that the State disprove the possibility that any other person could have been the creator of posts, etc. in question
vs. All the proponent has to do is authenticate the
social media and introduce sufficient facts to persuade a reasonable juror that the evidence is what appears to be and the burden shifts to party objecting to introduce evidence that legitimate challenges (not merely conjecture or speculation) the authenticity of said evidence
FOUNDATIONAdequate foundation is laid when a document is identified and authenticated
AUTHENTICATIONFed Evidence 901(a)Establishes requirement of authentication or identification as a condition precedent to the admissibility of nontestimonial evidence
Basic requirement is that the proponent produces evidence sufficient to support a finding that the item is what the proponent claims it is
PRETRIAL MOTIONS
WHY? If your case or key element rests on
admission of Facebook or social media, don’t wait until the middle of trial to find out you have a problem
Judges don’t tend to make decisions favorable to the State in the middle of heated arguments at trial
Allows you to bring in outside/collateral witnesses to support that social media page belongs to defendant
AVOID ISSUES
If social media information is obtained by Search Warrant, make sure that request is sent within correct time frame
When information is returned by Facebook, file Search Warrant return in a timely manner
CREDITS Authentication of Social Media Evidence
by Honorable Paul Grimm American Journal of Trial Advocacy Spring, 2013
CONTACT INFORMATION
Lorinda LamkenSpecial Prosecutor
State of Illinois – Appellate Prosecutors Office
[email protected](217)782-1628
Shannon O’BrienAssistant Attorney General
Illinois Attorney General
[email protected](312) 814-1012
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