What Are the Legal Standards for Admitting Social Media Evidence in Court?
Early in my career, another attorney at the firm and I represented a national retail supplier against alleged harassment and discrimination claims. It was a contentious case that was resolved in mediation. The client appreciated this result. Notwithstanding, I recall during my days as a young associate in a defense firm salivating at the opportunity to bill time scouring the plaintiff’s social media profiles to find inconsistencies in stories, unwelcoming information to devalue a case, and damaging character information.
Social media platforms such as Facebook and LinkedIn are now widespread, leading to an increase in the use of social media posts as evidence in trials. However, authenticating these posts is often more challenging than with other forms of digital evidence, such as emails or texts. Simply demonstrating that a post appeared on a particular individual’s web page is insufficient, as creating a Facebook page or similar platform under someone else’s name is relatively easy. Moreover, individuals may gain unauthorized access to someone else’s social media account.
A printed copy (or downloaded video) of the web page displaying the post in question must be present to properly present evidence of a social media post in court. The individuals who printed or downloaded the posts must testify that the printouts accurately reflect what appeared on their screens at the time of printing or downloading.
More specifically, authentication is defined as satisfied by “evidence sufficient to support a finding that the matter in question is what its proponent claims” (see Fed. R. Evid. P. 901(a)). This standard is generally low, and courts only need to assess whether the proponent of the evidence has presented a foundation from which the jury could reasonably conclude that the evidence is as claimed. Further, the basis for authentication does not necessarily need to convince the court; it merely needs to provide enough evidence for the jury to potentially find the burden met.
The federal version of the evidentiary rule, Federal Rule of Evidence 901, similar to many state law counterparts, provides examples of how evidence can be authenticated. In the context of social media, relevant methods include testimony from a witness with knowledge (someone familiar with the posting at issue), comparing the item with an authenticated specimen by an expert witness or trier of fact, or identifying distinctive characteristics of the evidence (such as appearance, contents, substance, internal patterns, or other unique features) in conjunction with all relevant circumstances. As this list is illustrative, these methods serve as guidelines for demonstrating that an item is authentic.
Authentication of social media evidence presents a unique challenge due to the dynamic nature of online content and the ease with which it can be manipulated. Consequently, legal practitioners must employ robust strategies to ensure the reliability and admissibility of social media posts in court. By adhering to established authentication methods and leveraging technological advancements, attorneys can effectively navigate the complexities of social media evidence and strengthen their cases.
What Ethical Obligations Arise with Social Media Discovery?
The use of social media within the courts has become increasingly common; lawyers must be mindful of their ethical obligations during social media investigations for potential litigation. American Bar Association Model Rule of Professional Conduct 1.1 on competence underscores the importance of legal knowledge, skill, and thoroughness. Specifically, Comment [8] emphasizes the need for lawyers to stay updated on changes in the law and its practice, as well as the benefits and risks of utilizing technology.
Navigating the realm of private social media activity entails ethical considerations and boundaries that attorneys must carefully observe. For instance, according to Model Rule 4.2, attorneys and their representatives are barred from seeking connections with represented parties via social media platforms. Therefore, legal professionals should refrain from engaging in communications or attempting to access social media data directly from represented parties.
Additionally, according to Model Rule 8.4, attorneys are ethically bound to refrain from using deceptive strategies to access private accounts. While attorneys may seek permission to review unrepresented individuals’ private social media information, they must abstain from engaging in deceitful or misleading behavior to achieve this. Notably, attorneys must remain abreast of whether their jurisdiction mandates disclosure of the purpose behind their request for accessing a private account, as requirements vary among jurisdictions regarding attorneys’ obligations to disclose such intentions.
Navigating the intricate landscape of social media usage in legal proceedings involves a delicate balance between leveraging its potential benefits and adhering to ethical boundaries. As technology continues to evolve, so do the ethical considerations surrounding its use in legal practice. Attorneys must stay abreast of these developments to ensure they uphold their professional responsibilities. Moreover, while the Model Rules provide a framework for ethical conduct, attorneys should also consider additional guidelines and best practices issued by relevant bar associations and legal authorities.
Furthermore, the ethical implications of social media investigations extend beyond mere access to information; they also encompass the manner in which attorneys interact with individuals on these platforms. As guardians of justice, attorneys must maintain the highest standards of integrity and honesty, even in the digital realm. This entails refraining from engaging in deceptive or misleading behavior, whether in communication with represented parties or in seeking access to private accounts. By upholding these ethical principles, attorneys not only safeguard their professional reputation but also maintain the integrity of the legal system.
The Jury’s Perception of Social Media Evidence
The influence of social media on public perception in legal cases is profound. Social media platforms serve as primary sources of news for many, shaping opinions through immediate and emotive communication long before formal legal proceedings begin. Viral hashtags, citizen journalism, and widespread online discussions actively contribute to the narrative surrounding legal matters, impacting how the public views the involved parties, the legal system, and the concept of justice itself. Yet, this influence also poses challenges, as the spread of misinformation and the presence of bias can distort online discourse.
Social media actively molds public opinion on legal cases. Emotionally charged posts, viral hashtags, and online campaigns wield the power to sway public sentiment, both positively and negatively. While they can mobilize support for victims and causes, they also have the potential to spread inaccuracies and foster biased narratives. This dual nature underscores the complex and active impact of social media on public perceptions of legal matters.
The profound impact of social media on public perception, particularly within the context of legal proceedings, remains undeniable. Social media platforms actively serve as primary sources of information regarding ongoing trials, shaping public opinion through the rapid dissemination of both accurate and misleading information. This influence can lead to a phenomenon often referred to as “trial by social media,” where individuals actively form judgments based on incomplete or biased representations of the facts. In some instances, this public sentiment actively influences the trajectory of legal proceedings, sparking protests or other forms of public outcry.
A Crucial Balancing Act
Integrating social media evidence into legal proceedings has unmistakably reshaped the landscape of the legal system. Social media platforms have accelerated the dissemination of evidence, altering public perceptions and impacting trial trajectories. Yet, alongside its advantages, the use of social media evidence presents ethical, procedural, and evidentiary challenges requiring careful attention.
Legal professionals must navigate this evolving landscape, balancing the potential advantage of social media evidence against potential dangers for the legal process’s integrity. Adapting to technological advancements while upholding fairness, authenticity, and due process remains paramount. Moreover, raising awareness among legal practitioners, judges, and jurors about the complexities surrounding social media evidence is crucial for equitable outcomes.
Ultimately, effectively utilizing social media evidence in trials demands an active understanding of its implications and limitations. Embracing best practices, maintaining ethical standards, and staying vigilant against potential pitfalls are essential for leveraging social media’s transformative power while upholding the justice system’s integrity and impartiality.
