Social Media Posts as Evidence

 

By: Kathleen Pulver,

Social media has changed the face of the legal landscape as we know it. As of 2015, nearly two-thirds of American adults were using social media. [1] The percentage is even higher among young adults, reaching an outstanding 90%. [2] It is now commonplace to see warrants appear in cases for access to social media pages and photographs. [3]

In order for evidence to be admitted in court, a four step analysis must be conducted.[4] First, under Rule 401, for any evidence to be admissible in court, it must be relevant.[5] A finding of relevance requires that the evidence have a tendency to make a fact more or less probable than it would be without the evidence, and the fact must be one of consequence in determining the action.[6] Second, after a finding of relevance, the evidence must meet the standard laid out by Rule 901.[7] Federal rule of evidence 901 states: “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce the evidence sufficient to support a finding that the item is what the proponent says it is.”[8] The rule provides several specific examples of the appropriate way to authenticate different kinds of evidence, however the most common way to authenticate is through the testimony of a witness, with knowledge of the evidence, that it is what it claims to be.[9] Third, the evidence may not be hearsay, defined by rule 801 as, an out of court statement made by a declarant offered to prove the truth of the matter asserted.[10] Finally, the admission of the evidence must not be blocked by another rule, such as privilege, or rule 403 which blocks the admission of evidence which has its probative value “substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” [11] Social media and other electronic evidence present unique challenges when conducting this analysis.

Social media evidence can certainly meet the first prong as we can think of numerous reasons why a certain posting or picture could be relevant to a criminal or civil case. Social media postings have been used as evidence of prior intent to harm and to rebut a claim of injury with photos of the person claiming injury doing things they shouldn’t be able to do while injured.[12] It is also clear that certain social media postings could get around the third and fourth prongs by meeting a hearsay exclusion, such as statement made against interest, and being more probative than prejudicial. [13] The difficulty with social media evidence is the second prong, ensuring that there is enough evidence presented to authenticate the posting to be what it claims to be.

When the evidence rules were first created, creating fraudulent documents was nowhere near as simple as it is now. With the evolution of technology, people are now placing more of their trust in the information provided by online sources, however this faith may be misplaced. Evidenced by the recent Facebook fake news scandal, we cannot trust everything we read online.[14] Like fake news stories, it is not difficult to create a fake social networking page.[15] In fact, a simple google search of “creating a fake Facebook” brings up more than 5 sources willing to assist in the creation of a fake Facebook.[16] This constant availability of means to create fraudulent sources brings up difficult authentication questions under the second prong that have yet to be significantly addressed by most courts. Only time will tell how courts adjust to these newly presented problems.

 

 

[1] See PEW RESEARCH CENTER, Social Media Usage: 2005-2015 (Oct. 8, 2015), http://www.pewinternet.org/2015/10/08/social-networking-usage-2005-2015/.

[2] See id.

[3] See e.g., Bradley v. State, 359 S.W.3d 912 (2012); Elonis v. United States, 135 S. Ct. 2001 (2015).

[4] This post discusses only the federal rules of evidence. Each state has their own rules of evidence, although many closely follow the same analytical structure as the rules for the federal courts.

[5] See Fed. R. Evid. 401.

[6] See id.

[7] See Fed. R. Evid. 901.

[8] Id.

[9] See id.; See also David I. Schoen, The Authentication of Social Media Postings, ABA Association (May 17, 2011), https://apps.americanbar.org/litigation/committees/trialevidence/articles/051711-authentication-social-media.html.

[10] See Fed. R. Evid. 801.

[11] Fed. R. Evid. 403. See Fed. R. Evid. 502.

[12] See Jessica Velasco, Social Media Can and Will Be Used Against You in Court, Socialnomics (Dec. 30, 2014), http://socialnomics.net/2014/12/30/social-media-can-and-will-be-used-against-you-in-court/.

[13] See Fed. R. Evid. 403; Fed. R. Evid. 801(d)(2).

[14] See Mirren Gidda, Facebook Staff Form ‘Secret Taskforce’ to Deal with Fake News Controversy, Newsweek (Nov. 15, 2016, 6:58 AM), http://www.newsweek.com/2016-election-facebook-google-fake-news-donald-trump-521255.

[15] See, e.g., How Do I Create a Page, Facebook, https://www.facebook.com/help/104002523024878?helpref=faq_content (Last visited Nov. 20, 2016).

[16] Search on Instructions for Creating a Fake Facebook Page, Google, https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=creating%20a%20fake%20facebook.

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Sean Livesey

Crushes Raptors

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