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The author is a California attorney and the blogger for Bow Tie Law.
A lawyer recently expressed to me serious doubts about using evidence from social media websites. According to him, electronically stored information (ESI) can never be trusted without the proffering party proving each step of creation to guarantee its authenticity. But that would be the equivalent of requiring a team of experts to authenticate a hard-copy document. You’d start with a lumberjack to explain how a tree was cut down. An expert on how trees are made into paper would follow. Another expert would detail how ink works, and so on and so on.
The law simply does not require such a metaphysical discussion of existence for social media information to be admissible. It is treated no differently than any other evidence. For admission in court, a party must: show that the ESI is relevant; authenticate it; address issues of unfair prejudice and probative value; address hearsay (show an exception or non-hearsay use of the ESI); and demonstrate that the ESI conforms to the original writing (the best evidence rule).
Federal Rule of Evidence 401 states that evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and if the fact is of consequence in determining the action.
There has been a mad dash by some attorneys to introduce social media evidence against an opposing party at trial. Such evidence, however, must first be deemed relevant to the litigation, either in support of the plaintiff’s case or the defense’s case. In a case involving emotional distress, photographs posted on a social media site were relevant to both. In Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 86914, at *9–10 (E.D. Pa. Aug. 4, 2011), the court held that the defendants could show up to three pictures of the plaintiff from a social media website if she testified on direct examination regarding her emotional distress after the incident alleged in the lawsuit. The plaintiff then would have the opportunity to rebut the photographic evidence on redirect by introducing up to three additional social media photographs from the same time period.
But what about authentication? “[A] piece of paper or electronically stored information, without any indication of its creator, source, or custodian may not be authenticated under Federal Rule of Evidence 901.” United States v. O’Keefe, 537 F. Supp. 2d 14, 20 (D.D.C. 2008).
The authentication of electronically stored information involves the following questions, at a minimum:
Michael R. Arkfeld, Arkfeld on Electronic Discovery and Evidence § 8.11(C), at 8–63 (3d ed.).
That sounds easy enough, but how do these questions apply to social media? A criminal case provides a helpful example. In People v. Valdez, 201 Cal. App. 4th 1429, 1434–37 (Cal. App. 4th Dist. 2011) (section on authentication not published), a police expert printed copies of the defendant’s profile on a social media website that contained photographs of and biographical information about the defendant. The expert went on to explain that although the profile is accessible to the public, only the individual who created the profile, or one who has access to that person’s login ID and password, has the ability to upload or manipulate content on the page. As a result, the court held that a reasonable trier of fact could conclude from the information posted—including personal photographs, communications, and other details—that the social media profile belonged to the defendant.
Blogs are not self-authenticating. Precedent holds that the authentication of Internet printouts requires a witness declaration in combination with a document’s circumstantial indicia of authenticity (i.e., the date and web address that appear on them) to support a reasonable juror in the belief that the documents are what the declarant says they are. Without either, authentication fails. Kennerty v. Carrsow-Franklin (In re Carrsow-Franklin), 456 B.R. 753, 756–57 (Bankr. D.S.C. 2011).
To use the hearsay rules to exclude, or the exceptions to admit, social media, lawyers need only apply the rules and exceptions in the same way they apply them to other evidence. Consider People v. Oyerinde, 2011 Mich. App. LEXIS 2104, at *26–27 (Mich. Ct. App. Nov. 29, 2011). In this first-degree murder and carjacking case, the court held that the defendant’s Facebook messages were not hearsay, but rather a party admission, because he sent them to another person. Just because the evidence was available on social media does not mean the test for a party admission changed. The rule states that “[a] statement is not hearsay if . . . [t]he statement is offered against a party and is the party’s own statement, in either an individual or representative capacity.” The judge applied the test as it would be applied to any other out-of-court statement and determined that such messages were not hearsay. The same court also admitted Facebook messages sent to the defendant and another individual under the “state of mind” exception.
Also instructive is Miles v. Raycom Media, Inc., 2010 U.S. Dist. LEXIS 122712, at *7–9, n.1 (S.D. Miss. Nov. 18, 2010), which held that a Facebook page containing unsworn statements made by third parties that were offered to prove the truth of the matter asserted constituted inadmissible hearsay under Federal Rule of Evidence 801.
So, although social media is a new area of evidence to consider, I imagine lawyers will soon use the rules to their advantage and argue that individuals “checking in” to locations on sites such as Foursquare are not hearsay but “present sense impressions,” and that tweets are admissible under the “state of mind” exception.
There is great risk that social media can be used purely for prejudicial, and arguably irrelevant, reasons in litigation. So, just like other evidence, its probative value must be weighed against its potential prejudice. In Rice v. Reliastar Life Insurance Co., 2011 U.S. Dist. LEXIS 32831 (M.D. La. Mar. 29, 2011), the court did just that. In this civil suit concerning a police shooting, the plaintiff included in the complaint a screen shot of the officer’s social media page. The image, captured a week after the shooting, included a 1960s photo of Clint Eastwood in old west gunslinger attire with the caption, “How I feel most of the time!!!!” The court struck paragraphs of the complaint related to the screen shot and the image itself, stating that they were “merely argumentative and prejudicial” and did not “add to the substantive allegations of the complaint.”
Similar to the issue of prejudice is the attempted use of social media to demonstrate bad character. Simply put, photographs from social networking sites cannot be admitted only to prove bad character. Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 86914, at *7–8 (E.D. Pa. Aug. 4, 2011).
Many attorneys rightfully ask what is the original writing of a status message? While technology is available to capture social media at a forensic level, most attorneys will likely obtain mirror images of hard drives and screen shots of web pages as evidence. Such images and screen shots can be printed. Therefore, Federal Rule of Evidence 1003 is likely the most useful tool in admitting such ESI as a duplicate. United States v. Nobrega, 2011 U.S. Dist. LEXIS 55271, at *20–21 (D. Me. May 23, 2011) (holding that a printout of an instant message chat was admissible as a duplicate under Rule 1003). The rule states:
A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.
The Rules of Evidence do not update like an app whenever a new smartphone or electronic device is released. For that reason, courts apply the evidence rules similarly to all evidence, including social media. Although it might seem unnerving to use the Hillmon doctrine on a tweet, apply the rules to your advantage—you already know them. q