With the rise of social media, all of the social media platforms have become a treasure trove of potential evidence in legal proceedings. However, the authentication of social media evidence presents unique challenges for legal professionals. Lawyers must be able to navigate the requirements for authentication when faced with social media evidence they want to admit or oppose at trial including authenticating the site - twitter, facebook, instagram - or authenticating the content - post, direct messaging, photos, videos. This article will discuss the evolving legal standard, and evidence that has been successfully used in the past to authenticate social media at trial.
Authentication
The Maryland Rules of Evidence provides, “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Md. R. Evid. 5-901(a). Lawyers can use direct or circumstantial evidence to demonstrate “the matter in question is what its proponent claims.” Examples of using direct evidence include the author admitting writing/posting the social media content, a witness who observed the author writing/posting the social media content, or a video of the author writing/posting the social media content. Pursuant to Rule 5-901(b)(4), “circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.” Id.
Griffin v. State
In Griffin v. State, 419 Md. 343 (2011), the defendant was on trial for a shooting. The state wanted to admit printed versions of the defendant’s girlfriend’s MySpace profile in order to prove that the defendant’s girlfriend intimidated a State’s witness. The state alleged the girlfriend posted a message that stated: “Free Boozy!!!! Just remember snitches get stitches!! U know who you are!!” The nickname of the defendant was “Boozy.” The girlfriend lived in Port Deposit.
The girlfriend testified at trial, but was not asked about the MySpace profile. In support of authentication of the social media evidence, the state called the lead detective to testify. The detective testified that he knows the pages are the girlfriend’s MySpace posting because he recognized her photograph, there was a reference to her boyfriend’s nickname “Boozy,” and he also recognized references to her children, city (Fort Deposit), and birthdate. However, the detective could not say when or if the girlfriend actually sent the threatening message.
The trial court ruled that the detective could testify in support of authentication to a redacted portion of the pages from MySpace, containing a photograph “of a person that looks like” the girlfriend and Boozy, adjacent to a description of the woman as a 23-year-old from Port Deposit, Maryland, and the blurb, stating “Free Boozy!!! Just Remember Snitches get stitches!! U Know who you are!!”
The appellate court ruled that the pages allegedly printed from the defendant’s girlfriend’s MySpace profile were not properly authenticated pursuant to Md. Rule 5-901. The Court of Appeals was concerned there was no direct evidence that the girlfriend was the alleged author’s account, or that she had exclusive access to this account, or that she actually wrote/posted the content at issue. The Court suggested the three best ways to authenticate social media evidence are to ask the alleged author directly, search the alleged author’s device, or subpoena IP address records from the social media platform. Judge Harrell dissented stating the standard was way too high!
The Legal Standard Evolved
There was a notable change in the legal standard in the consolidated case of Sublet, Harris and Monge-Martinez v. State, 442 Md. 632 (2015). All three cases involved the same legal issues, and the application to the authentication of social media or other electronic messages; in Sublet, via a Facebook timeline; in Harris, on Twitter through “direct messages” and public “tweets;” and, in Monge-Martinez, through Facebook messages. Judge Harrell’s dissent in Griffin was adopted by the majority in Sublet. The test used in Sublet was whether a reasonable juror could find in favor of authenticity. The reasonable juror standard produces a different outcome from the stricter scrutiny of the Griffin opinion. Now, the party seeking to authenticate the social media evidence need not rule out all other possibilities. The presence or absence of biographical info linking to the alleged author is not necessarily dispositive.
Sublet v. State
The defendant, Sublet, was charged with assault, stemming from a fight between Sublet, his girlfriend, and several other people. During cross-examination of a witness to the fight, defense counsel wanted to introduce posts on the witness’s alleged Facebook account, allegedly written by her, which suggest Sublet was not the aggressor in the fight. The evidence for authentication included the fact that the witness acknowledged it was her Facebook profile but said she did not write the posts at issue, that other people knew her username and password and others have posted on her account page without her knowledge before. The posts are undated on the printout pages counsel used evidence.
The Court ruled that the account was authenticated because of the direct evidence that the witness – account holder - agreed it was her Facebook profile; but, the contents were not authenticated.
State v. Harris
In the case of State v. Harris, Harris was accused of shooting Jared, apparently in retaliation for a fight at a high school the previous day where a friend of Jared beat up Keon, a friend of Harris. The State wanted to introduce posts and direct messages on Twitter allegedly sent by Harris on an account allegedly belonging to him. The content for authentication included: 1) a witness identified the name on the Twitter account (TheyLovingTc) as Harris, 2) there was a photo of Harris linked to the account, 3) contents were recovered from two phones found by police in Harris’ possession, 4) contents reference an upcoming event - planning a shooting after the fight - that only a few people would know about (“We gon avenge keon”), and 5) the timing of the posts – between the fight and the shooting. The Court ruled that the account was authenticated, even though Harris did not admit it was his and there were no business records from Twitter linking the account to him. The Court also ruled that the contents were authenticated as having been written by Harris (based on the content and timing).
State v. Monge-Martinez
State v. Monge-Martinez was an attempted murder case for domestic violence in which Monge-Martinez was charged with stabbing his girlfriend. The prosecution wanted to introduce Facebook messages allegedly sent by Monge-Martinez to his girlfriend after the attack, expressing remorse for his actions. The evidence for authentication included: 1) a profile name on the Facebook account sending the messages is “Carlos Monge,” 2) message written in Spanish (Monge-Martinez’s primary language), 3) the victim testified “Carlos is on my account,” 4) around the time the messages were sent, the victim was also receiving phone calls from Monge-Martinez, and 5) the messages were sent only hours after the stabbing, when few people knew about the event.
The Court held the account was authenticated, even though Monge-Martinez did not admit the Facebook account was his and there was no identifying information on the Facebook profile directly linking it to him. The Court also ruled the contents were authenticated as having been written by Monge-Martinez (based on the content, timing, and language).
State v. Sample
The legal standard was changed again in State v. Sample, 468 Md. 560 (2020). This case involved an armed robbery of a liquor store, where one suspect was shot to death at the scene (Claude Mayo) and one (Sample) escaped.
The State wanted to help prove Hayes Sample is the robber who got away, by showing that he used his alleged Facebook account to unfriend Mayo’s alleged Facebook account after the robbery. There was no content being offered, just the “act of unfriending.” Evidence for authentication of the Sample account included: 1) the profile name was “SoLo Haze” – sounds like Hayes!, 2) the email address associated with the account was [email protected], 3) the robbery happened in Towson, 4) “Connections” on the Facebook profile list Baltimore and two schools in the Baltimore City/County area, 5) the Facebook profile was friends with “Skyy DaLimitLynn” and before trial defense counsel informed the court that Skklya Lynn would be called as a witness, and 6) she is also Sample’s child’s mother.
Evidence for authentication of the Mayo profile included: 1) the profile name was claude.mayo.5, 2) the Facebook profile was friends with Shantell Richardson who is Mayo’s mother, 3) photos of Mayo were on this account, 4) the account was friends with the alleged Sample account (SoLo Haze), and 5) there were posts about Mayo’s death and services on this account.
Evidence to support the authentication of the “UnFriending” by Sample included: 1) timing occurred right after the robbery & Mayo’s death, 2) the claude.mayo.5 account was the only one unfriended, 3) video evidence shows Mayo and Sample had been together around the time of the robbery, and 4) Sample denied he knew Mayo in a police interview.
The Court held that the Sample and Mayo Facebook account was authenticated. The Court also held that “more likely than not” a reasonable juror could believe that Sample took the action of unfriending Mayo based upon the timing, motive, lack of any other “unfriendings.” Consequently, the courts are now applying the “reasonable juror” test, and the standard of proof is preponderance of the evidence (more likely than not), even if it’s “possible” someone else accessed the account in question and posted the content!
The Legal Standard Summary for Authenticating Social Media
In nine years, the law moved from a focus on direct evidence of ownership/authorship to a comfortable reliance on circumstantial evidence alone to authenticate social media evidence. Direct evidence such as business records, IP addresses, “birth certificate” names on accounts, and acknowledgement of authorship is not necessary if the proponent of the evidence has sufficient circumstantial evidence to authenticate the social media evidence. Proof that no one else could have accessed this social media site or posted this content is not necessary.
Text messages
Text messages have the same authentication issues as social media content. The content of text messages will reference events and relationships relevant to the alleged author and people known to the alleged author. The timing is important - did something happen before or after the text message was sent.
Dickens v. State
In Dickens v. State, 175 Md.App. 231 (2007), the defendant was charged with murdering his wife in September. The question at trial was whether the homicide was premeditated. In order to prove premeditation, the State wanted to use threatening text messages purporting to be from the defendant that were sent to the victim from the previous August and July. There were many text messages sent in July and August from someone calling himself “Doll/M” as follows:
- "Im gonna shock the whole county ronight"
- “Until death do us part bitch”
- “Bad weather on the way I’ll be there in 15m and Im getting Dajon”
- “You wanna stop me from seeing Dajon Your keep taking me as a fucking joke Im trying my best to keep it together”
- “She better enjoy her last day in the motel Get ready for the shocker.”
The evidence used for authentication included: 1) before the victim was killed, her mother gave her a cell phone in order to call 911 in case she had a problem with the defendant. The victim’s mother discovered these text messages on the phone, and 2) the number associated with the sender of the texts was a number that initially belonged to the victim but was later given to the defendant by the victim, 3) the victim and the defendant shared a daughter named Dajon, 4) reference to wedding vows, the defendant was jealous of the victim’s relationship with another man and tried to force his way into the motel room victim was staying with the other man, and 5) Doll/M nickname reference to “Dial M for Murder” and strong evidence victim murdered by defendant. The Court ruled the text messages were authenticated.
Conclusion
The standard for authentication is preponderance of the evidence (“Could a reasonable juror believe this evidence is what the offering party claims it is?”). You do not need direct evidence (testimony/records) linking the social media site/content to the alleged author if there is sufficient circumstantial evidence. Common ways to authenticate social media evidence (the site and/or the contents) using circumstantial evidence include:
- Biographical details associated with account (DOB, location, school) can be linked to author
- Contacts or friends associated with account can be linked to author
- Nickname/screen name can be related to author
- Social media content relates to activities that can be tied to author
- Content refers to events which few people other than author would know about
- Content refers to future planned events which then came to pass, involving the author
- Content refers to past relationship markers, private names, other personal details which would only be relevant to author
- Content is a reaction (e.g., glee, remorse, attempt to conceal) to an event the author was recently involved in
- Language grammar, spelling, punctuation can be associated with the author
Finally, don’t forget that even though your social media evidence may be successfully authenticated, there are other hurdles to admissibility. For example is the social media evidence hearsay? Is it being offered for the truth of the matter, or for some other reason? Is there a hearsay exception? If the social media evidence is “testimonial” there may be constitutional confrontation clause issues.
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This article was inspired and contents derived from the presentation Authenticating Social Media and Other Digital Evidence at Trial, by Marot Williamson and Jason Steinhardt, as part of the MSBA’s 2024 Legal Summit in Ocean City.
Marot Williamson, Esquire, has been an Asst. State Attorney for Anne Arundel County since 2010, Asst. State’s Attorney for Prince George’s County from 2008-2010. Ms. Williamson was named as one of the Leading Women Under 40 in 2022 and Maryland’s Top 100 Women in 2024. She has served as the President, James C. Cawood Jr., American In of Court; President, Anne Arundel county Chapter of the Women’s Bar Association; Board Member At-Large, Women’s Bar Association, and Trustee, Anne Arundel Bar Association. Ms. Williamson earned her Bachelor of Arts from Bryn Mawr College and her Juris Doctorate from Villanova University School of Law.
Jason Steinhardt, Esquire, was an Assistant State Attorney for Anne Arundel County from 2005-2009 and again from 2014 to present. Mr. Steinhardt was the Trial Team Leader of the Felony Narcotics Team and graduated from the University of Maryland School of Law in 2005. He is certified as an instructor by the Maryland Police Correctional Training Commission. Mr. Steinhardt instructs local law enforcement on criminal and constitutional law.