III. Admissibility of Social Networking Website Evidence

Social media users are surprisingly indiscrete and their statements are generally easy to find.[1]  Not surprisingly, attorneys are increasingly seeking to introduce evidence from social networking sites in both civil and criminal cases.[2]  Although electronic evidence may present unique challenges to admissibility, authenticity, and foundation, it does not require the proponent to discard his knowledge of traditional evidentiary principles or learn anything truly new.[3]  As methods of communication have expanded, the Federal Rules of Evidence have essentially remained the same, however, application of those rules have varied with new modes of communication.[4]  Despite the interesting questions raised about the hearsay rule and its exceptions in relation to the admissibility of Facebook posts, little concern has been raised about applying the hearsay doctrine.[5]  By contrast, social media has triggered what could be characterized as a judicial “freak-out” in response to the need to authenticate statements made via social media.[6]

Authentication questions are by far the most interesting issues raised by new social media,[7] and an attorney seeking to admit evidence from a social networking site must first overcome the hurdle of authentication.[8] Essentially, the authentication question is a simple one:  is the item what its proponent claims it to be?[9] The process of authentication requires two steps; the first entails the gate-keeping role of the judge, who must determine whether a reasonable jury could find the item authentic; and second step requires the jury to revisit the question of authenticity as a matter of conditional relevance.[10]  Under existing rules, the relevant examples for methods of authentication include testimony of a witness with knowledge,[11] and distinctive characteristics.[12]  In civil cases, parties frequently use pretrial stipulations to satisfy both steps of the authentication process; in criminal cases, however, such stipulations are less common.[13]

Despite the potential authenticity issues surrounding social media evidence, judges have been applying the existing rules to matters concerning evolved technology where no new and definitive bright line rule exists.[14]  Therefore, it appears that no definitive bright line rule may actually be necessary. [15]  Although there has been little push to alter the rules,[16] courts have instead focused on uniformly applying existing rules to new media, which is what has proved to be sometimes tricky.[17]  Authentication is easy where the party admits that the page or post is her and that she made the post.[18]  In the absence of such testimony, however, courts have been forced to address four major types of authentication concerns: (1) a general lack of proper foundation; (2) the possibility that the entire social networking page is fake; (3) the possibility that a genuine existing page has been hacked; and (4) the possibility that someone has appropriated the site of another by obtaining the password through friendship, phishing, or a computer left logged on and unattended in a place where third parties could post in the owner’s name.[19] 

Similar to initial judicial opposition to photographs as evidence and concerns about “intentional and skillful manipulation” by the proponent,[20] are the current judicial suspicions regarding social media evidence.[21]  Evidence law has been slow to adapt to new forms of technology, and courts have been initially struggling to uniformly apply the existing rules.[22]  Regarding social media evidence, authentication has proved to be especially difficult in criminal cases; as a result, courts have been less likely to allow admission.[23]  Unlike in civil litigation, criminal defendants have the Fifth Amendment privilege against self-incrimination.[24]  Therefore, in cases where the government has gained access to non-public Facebook content, the chances of actually presenting this evidence at trial appear to be slim.[25]

Recently, in reversing a lower court’s admission of a criminal defendant’s MySpace pages, the Maryland Supreme Court [26] articulated three specific avenues for authenticating printouts from social media sites: (1) seeking testimony from a witness with knowledge, either the profile creator or someone who had observed the social-media activity first hand; (2) searching the computer of the person who allegedly created the profile and the posting to examine its hard drive and Internet history; and (3) obtaining information directly from the social networking site itself.[27]  However, as discussed earlier, a criminal defendant cannot be forced to testify so as to satisfy the first avenue, while the SCA limits the availability of the third avenue for authenticating social media content in civil cases.[28]  This strict approach to authentication was based on the court’s concerns that, “anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password.”[29]

Those who prefer the stricter approach adopted by the Maryland Supreme Court claim that reliability issues should not be going straight to the jury.[30]  Some argue that a jury is unable to interpret the reliability of the social-networking evidence because all evidence offered to support authenticity was a preliminary matter determined by the judge beforehand. The gate-keeping function of the judge in making the determination about authenticity serves to prevent a jury from hearing untrustworthy or unreliable evidence.[31]  This position is problematic because it assumes that a jury would not be given proper evidence to help determine its weight.  For example, when authorship of a Facebook post is denied by a defendant, it is well within the province of the jury to determine, in light of their own life experience, and based on the evidence, who they find credible and whether someone other than the defendant actually made the post.

This hyper-wariness of authenticating social media is bad policy that will someday appear to be quaint in the same way that initial opposition to photographic evidence is now viewed as quaint.[32] Because social networking has become ubiquitous and may soon be the primary means of communication, this stingy approach to authentication will lead to the unnecessary loss of valuable evidence.[33]  Fears about this new form of communication technology has led some courts to demand unreasonable levels of assurance, ignoring that judges’ initial screens for authenticity should not present such a great hurdle to admissibility.  Instead, the better approach is to allow such questions to go toward the weight of the evidence and not the admissibility.  It must be observed that the same types of uncertainties exist with traditional written documents: a signature can be forged, a letter can be typed on another’s typewriter, and distinctive letter head can be copied or stolen.  Historically, those are exactly the sorts of questions that have been left for the fact-finder to determine.  Similar to the way that a jury would determine whether or not a signature has been forged should the jury figure out whether or not the electronic post was forged.