FACEBOOK

RECORDS

YOU GOT THEM,NOW WHAT DO YOU

DO?

SOCIAL MEDIA

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.

SOME HAVE REQUIRED ENHANCED 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 drive3)obtain information directly from social

networking site linking person establishing profile

LESSONS LEARNED FROM GRIFFINAND DISTINGUISHING FACTORS 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

OTHER JURISDICTION HAVENOT REQUIRED ENHANCEDEVIDENCE

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 emails, which come from a specific address, or text messages from a specific number.

State v. Assi, 2012 WL 3580488 (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.

BOTTOM LINE – CASES ACROSS NATION FALL INTO 2 CATEGORIES 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

FOUNDATIONAdequate foundation is laid when a document is identified and authenticated

AUTHENTICATIONFed 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

PRETRIAL MOTIONS

WHY? 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

AVOID ISSUES

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

CREDITS Authentication of Social Media Evidence

by Honorable Paul Grimm American Journal of Trial Advocacy Spring, 2013

CONTACT INFORMATION

Lorinda LamkenSpecial Prosecutor

State of Illinois – Appellate Prosecutors Office

llamken@ilsaap.org(217)782-1628

Shannon O’BrienAssistant Attorney General

Illinois Attorney General

sobrien@atg.state.il.us(312) 814-1012