YOU GOT THEM, NOW WHAT DO YOU DO?

 Facebook began in 2004  Facebook, LinkedIn, Twitter, Snapchat, Kik, Instagram, Youtube, Tumbler, Text ‘em  Given that the top three are just over a decade old, the admission of social media/digital evidence is still emerging law

Courts have struggled on how to handle social media. Across the nation courts have applied different standards to electronic evidence.

Griffin v. State, 19 A.3d 415 (Md. 2011) case reversed, in part, because admission of social media evidence and failure to demonstrate that someone else could have created postings FACTS: MySpace post by defendant’s girlfriend that threatened witness. Officer testified that he searched, found and printed post. He believed to be defendant’s girlfriend based on: her picture identifier, user birthdate, claimed to have 2 children, use of defendant’s nickname, states she is living with defendant. Trial court found sufficiently authenticated based on totality of circumstances.

Appellate court overturned stating that a greater degree of authentication is required based on confounding aspects of social media. The court went on to identify proper means of authenticating printouts of posting on social media sites as follows: 1)ask purported creator if they created profile and adding posting in question 2)computer search of hard drive 3)obtain information directly from social networking site linking person establishing profile

 No documents were obtaining directly from social media site  Appears they did not call girlfriend as witness  Implication that even if you are denied use of documents in your case, you may be able to use on cross-examination

 Commonwealth v. Williams, 926 N.E.2d 1162 (Mass. 2010) reversed because of failure to present evidence of security of social media site, ability to access, and password requirements

Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) which rejected Griffin and held that authenticity of social media could be established by circumstantial indicia of authenticity demonstrating connection to defendant. Specifically, the Appellate Court held that there was ample circumstantial evidence that defendant had created and maintained the MySpace account in question. Interestingly, the Court distinguished social media evidence from s, which come from a specific address, or text messages from a specific number.

State v. Assi, 2012 WL (Ari. Ct. App. Aug. 21, 2012) which held circumstantial evidence such as defendant’s use of his nickname and testimony of another witness familiar with his postings The State presented information from police gang records regarding defendant’s nickname and gang affliation, when defendant arrested he admitted both, and defendant’s father called to testify that defendant had a MySpace page and he had seen photographs on defendant’s page.

 Skepticism about admitting and requirements (often unreasonable and unattainable) that the State disprove the possibility that any other person could have been the creator of posts, etc. in question vs.  All the proponent has to do is authenticate the social media and introduce sufficient facts to persuade a reasonable juror that the evidence is what appears to be and the burden shifts to party objecting to introduce evidence that legitimate challenges (not merely conjecture or speculation) the authenticity of said evidence

Adequate foundation is laid when a document is identified and authenticated

Fed Evidence 901(a) Establishes requirement of authentication or identification as a condition precedent to the admissibility of nontestimonial evidence Basic requirement is that the proponent produces evidence sufficient to support a finding that the item is what the proponent claims it is

 If your case or key element rests on admission of Facebook or social media, don’t wait until the middle of trial to find out you have a problem  Judges don’t tend to make decisions favorable to the State in the middle of heated arguments at trial  Allows you to bring in outside/collateral witnesses to support that social media page belongs to defendant

 If social media information is obtained by Search Warrant, make sure that request is sent within correct time frame  When information is returned by Facebook, file Search Warrant return in a timely manner

 Authentication of Social Media Evidence by Honorable Paul Grimm American Journal of Trial Advocacy Spring, 2013

Lorinda Lamken Special Prosecutor State of Illinois – Appellate Prosecutors Office (217) Shannon O’Brien Assistant Attorney General Illinois Attorney General (312)