The Admissibility of Facebook Communications
| Publication year | 2015 |
| Pages | 77 |
Articles
Evidence
The Admissibility of Facebook Communications
By Erica Rogers.
Evidence articles are presented in a hypothetical format, addressing legal issues of particular import to trial lawyers. Readers who are interested in submitting an article should contact the Coordinating Editor.
Coordinating Editor
Lawrence M. Zavadil—(303) 389-4644, zavadil@wtotrial.com
About the Author
Erica Rogers is a judicial clerk for Judge Jeffrey Pilkington, First Judicial District, in Golden—(720) 772-2616, erica.rogers@judicial.state.co.us.
Q: Are Facebook communications admissible?
A:
Relevant Facebook communications are admissible if they are properly authenticated and either are not hearsay or fall under a hearsay exception.
Assumed Facts
The prosecution in a homicide case discovered communications in the defendant's Facebook account related to the murder. They seek to introduce the Facebook communications at trial. The defendant objects, arguing that the communications have not been authenticated and are inadmissible hearsay. How should the court rule?
Discussion
The prevalent use of Facebook and other social networking sites has left courts and litigants grappling with evidentiary issues related to the admissibility of messages, posts, and other communications. These communications were not contemplated by the Colorado Rules of Evidence, and little guidance has previously been available from Colorado appellate courts. Before the court of appeals' recent decision in People v. Glover,[1] no Colorado appellate court had addressed the admissibility of Facebook communications. The Glover court provided guidance on this issue by addressing the two primary objections relating to the admissibility of Facebook communications: authenticity and hearsay.
Authenticity
Evidence must be authenticated to be admissible.[2] Proper authentication requires sufficient evidence "to support a finding that the matter in question is what its proponent claims."[3] A proponent may authenticate evidence in a variety of ways, including through witness testimony, i dentification of distinctive characteristics, and comparison.[4] While authentication generally does not pose a high burden,[5] electronic communications such as Facebook messages raise unique issues due to the relative ease with which fake accounts can be created and established accounts can be accessed by third parties.[6]
The court in Glover addressed the admissibility of multiple Facebook messages and posts found in the defendant's Facebook account.[7] At trial, the defendant was convicted of orchestrating the victim's murder.[8] The defendant's Facebook communications included threats toward the victim and a conversation between the defendant and a third party about whether the defendant had "placed a 'green light' on the victim's head," meaning the defendant had wanted the victim killed.[9]
The trial court admitted the Facebook communications based on the prosecution's assertion and evidence that they were Facebook "business records." The Glover court found that, although the trial court's reliance on the business records exception was misplaced,[10] the messages were nevertheless admissible because they were properly authenticated and did not constitute inadmissible hearsay.[11]
To authenticate a Facebook message, the proponent must show "(1) the records were those of Facebook and (2) the communications recorded therein were made by defendant."[12] In Glover, the lead detective testified to how he subpoenaed the defendant's Facebook records, received the records from Facebook, and had a volunteer search the records for relevant information.[13] The court of appeals held that the first prong was satisfied by both the lead detective's testimony and the unchallenged Facebook records custodian's affidavit...
To continue reading
Request your trial