Evidence

• Publication year: 2016
• Author: By Marcellus A. McRae, Michael M. Lee, and Vania Wang

Evidence

By Marcellus A. McRae, Michael M. Lee, and Vania Wang

California Courts "Like" a Lenient Approach to Authenticating Social Media Evidence

The proliferation of different social media platforms and their continued widespread use present unique challenges in modern litigation. Corporations and individuals worldwide utilize various types of social media—Facebook, Twitter, LinkedIn, YouTube, Instagram, Snapchat, and others—on a regular basis to communicate with friends, share photos of their children, promote themselves or their brands, and voice opinions on political issues or current events. Research shows that as of 2016, an astounding 68% of all U.S. adults use Facebook, while 28% use Instagram, 25% use LinkedIn, and 21% use Twitter.¹ This ubiquity means that social media content is increasingly becoming relevant to litigation of all types.

But while social media evidence can be a valuable asset in litigation—from discovery through trial—California litigants and courts have grappled with serious authentication concerns, given the ease with which it may be manipulated or forged. Despite these concerns, recent decisions indicate that California is moving toward a more permissive rule regarding authentication requirements for social media evidence. This article discusses the unique issues related to the authentication of social media evidence, and how courts, both nationwide and in California, have addressed authentication concerns. Finally, it addresses some additional concerns regarding the admissibility of social media evidence.

Authentication of Social Media Evidence

Social media evidence is subject to the same admis-sibility standards under the California Evidence Code as any other type of evidence. Like all other evidence, it must be authenticated in order to be admis-sible.² Under Evidence Code sections 1400-1402, the authentication requirement is satisfied when there is an "introduction of evidence sufficient to sustain a finding that the material is what the proponent claims it is."³ The trial judge makes the preliminary determination of whether there is sufficient evidence to sustain a finding of authenticity, but the trier of fact makes the ultimate determination of whether a particular piece of evidence is actually authentic.⁴

Generally, documentary evidence can be authenticated by a witness who saw the evidence being created (Evidence Code section 1413), an expert witness testifying to its genuineness (Evidence Code section 1418), circumstantial evidence (Evidence Code section 1410), a party's admission (Evidence Code section 1414), or stipulation (Evidence Code section 1400). But many of these traditional methods of authenticating writings do not quite fit the digital medium of social media evidence.

Grappling with this issue, courts in other jurisdictions have developed two contrasting approaches to authenticating social media evidence: the "Maryland approach" and the "Texas approach."

The Maryland Approach

The case best exemplifying the Maryland approach is the 2011 case, Griffin v. State?⁵ The defendant in Griffin was charged with second-degree murder, first-degree assault, and use of a handgun in commission of a felony.⁶ As part of its case, the prosecution submitted printouts of a Myspace profile that belonged to Griffin's girlfriend, Barber, in order to show that Barber threatened one of the State's witnesses.⁷ The printouts contained the statement: "FREE BOOZY [Griffin's nickname]!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!"⁸ They also showed the name of the profile as "Sistahsouljah," the profile owner's birthdate and location, a photograph of a person resembling Barber, and a photograph of Griffin and Barber embracing.⁹

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To authenticate the printouts, the prosecution relied on the testimony of the investigating police officer who had downloaded the information from Myspace.¹⁰ The officer testified that he knew the Myspace profile in question belonged to Barber due to the photograph of Barber and Griffin, a reference to Barber and Griffin's children, and the fact that the profile's birthdate matched Barber's birthdate.¹¹Based on this testimony, the trial court admitted the profile printouts, and Griffin was convicted. Griffin appealed, arguing that the printouts were not properly authenticated and were thus inadmissible.¹²

The Maryland Court of Appeals reversed and remanded the case. Expressly acknowledging "[t]he potential for fabricating or tampering with electronically stored information on a social networking site," the court observed that such potential for fraud and manipulation posed "significant challenges" when evaluating the authenticity of web page printouts.¹³ Applying Maryland Rule 5-901, which is substantially similar to California Evidence Code section 1400, the court held that the profile owner's location and birthdate, a reference to the defendant's nickname, and a photograph of the couple were insufficient circumstantial evidence to authenticate the Myspace profile printouts.¹⁴ In so holding, the court stated its concern that "someone other than the alleged author may have accessed the account and posted the message in question .... [A] printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that [she] was its creator and the author of the [alleged threat]."¹⁵ This approach thus creates a heightened standard for authenticating social media evidence.¹⁶

The Texas Approach

In contrast, Texas takes a more lenient approach to authenticating social media evidence—an approach that does not differentiate between social media evidence and other types of documentary evidence. In Tienda v. State, the case best exemplifying the Texas approach, defendant Tienda was charged with murdering three men in a multiple car shootout allegedly involving gang rivalries.¹⁷ Tienda was convicted, in part, on the basis of printouts of his Myspace profile, which showed images of a person resembling Tienda displaying gang-affiliated tattoos and making gang-related gestures.¹⁸ The prosecution also introduced Myspace message chains discussing details of the shooting, as well as statements on the Myspace profile page reading, "You aint BLASTIN You aint Lastin," "I live to stay fresh!! I kill to stay rich!!," and "RIP David Valadez [one of the victims]."¹⁹

To authenticate this social media evidence, the prosecution offered the testimony of Tienda's sister that the Myspace accounts belonged to Tienda.²⁰ The State also produced "Subscriber Reports" and accompanying affidavits subpoenaed from Myspace, which showed that two of the Myspace accounts were created by a "Ron Mr. T," and the third by "Smiley Face," which was Tienda's "widely-known nickname." There was no testimony at trial, however, regarding whether any of the "Sign up IP numbers" corresponded to an IP address at a computer either belonging to Tienda or to which he had access.²¹The trial court admitted the Myspace evidence, and Tienda appealed.²²

The Texas Court of Criminal Appeals affirmed,²³holding that the printouts were properly...