Getting Social-Media and Text-Message Evidence in the Door

Authentication under Rule 901(a) of the Rules of Civil Procedure is an extremely low hurdle to clear; all you need is evidence sufficient for a reasonable juror to find that the item is what the proponent claims. Fed. R. Evid. 901. And if you know what to look for, the creator of the evidence typically provides most of the legwork.

Text Messages

In United States v. Lackey, No. 1:17-CR-269, 2019 WL 6464656, at *1 (M.D. Pa. Dec. 2, 2019), the U.S. District Court for the Middle District of Pennsylvania upheld a finding that several pieces of circumstantial evidence authenticated the defendant as the owner of an iPhone and, therefore, authenticated the text messages within the iPhone. First, the iPhone was found on the defendant's person, which suggested that it belonged to him. Second, the contents of the iPhone indicated the defendant's ownership, including the defendant's name being listed as the "My Card" contact at the top of the contact list, and several "selfies" depicting the defendant. Finally, several text messages referred to "Maurice," the defendant, as the operator of the iPhone.

In Nicholson v. State, 837 S.E.2d 362 (Ga. 2019), the state obtained cell phone records, which included a number of text messages, via a search warrant to obtain the records from AT&T, but did not physically obtain the defendant's phone. The Supreme Court of Georgia cited several circumstances that were sufficient to authenticate that the text messages were sent by the defendant. One piece of evidence was that the subscriber address on the account matched an address listed on a documents related to a prior arrest and on the defendant's driver's license. The court also highlighted the defendant's membership with a subset of the Bloods gang and the fact that the text messages contained "bloods slang and terminology, which likely would not be used or understood by someone who was not associated with the gang[.]" Id.

Social Media

If an individual has a social-media account, it is likely that they have included lots of personal information on the account, which is an advantage for anyone seeking to authenticate social media evidence. In United States v. Quintana, 763 F. App'x 422 (6th Cir. 2019), the U.S. Court of Appeals for the Sixth Circuit upheld the authentication of several photographs posted on the defendant's Facebook account. In that case, the account details "significantly overlapped with the defendant." Id. at 426. Those details included the account being registered in the defendant's name, the defendant's email address being listed on the account, and the account showcasing the city where the defendant lived. Photos on the account also showed the defendant's tattoos and "distinctive features of [the defendant's] apartment." Id.

Conclusion

Ultimately, any personal information contained in text messages and social-media accounts should be used to authenticate the author or owner of the information. Generally, because the bar is so low, even a minimal amount of information overlapping between a text or account and the owner will be sufficient to authenticate the evidence. However, because of the nature of communication by text and social media, the information required will typically be readily available.

Joseph Unger is an attorney with Spilman Thomas & Battle, PLLC, in Charleston, West Virginia.

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