National Association of Attorneys General

National Association of Attorneys General National Association of Attorneys General

Status Update on Authenticating Social Media Evidence: The Three Primary Approaches Applied Nationally

John T. Lee, Senior Assistant Attorney General and Kevin E. McReynolds, Assistant Attorney General, Colorado Attorney General’s Office

Imagine you are a prosecuting the head of a “street family” for architecting a “social networking” murder.[1] The “street family” consists of several young homeless adults and runaway teens, but it is the leader’s Facebook posts that both establish his role in ordering the murder and that one of his motives for doing so was that the victim angered him by repeatedly posting comments on the leader’s Facebook posts.[2] Specifically, “Brooklyn” used Facebook to threaten the victim and put a “green light” on his head.[3] Several days after these posts, the police found the victim dead in a gully next to an apartment complex, with numerous stab wounds to his head and neck, and missing a finger.[4] Later that day, the murderer was found with the victim’s finger in his pocket, which he kept as proof that the “job was done.”[5] While the successful prosecution of Brooklyn will doubtlessly rest on the admissibility of evidence obtained from social media, what must be shown to admit the evidence will largely turn on where the case is prosecuted.

The centrality of social media in the above case only underscores its prevalence in today’s legal landscape. It is no secret that government agencies mine social networking sites for evidence.[6] As one judge has explained, “[s]ocial media is ubiquitous, and it is here to stay.”[7] Over the last decade, social media use has skyrocketed and Facebook alone is used by nearly 8 out of every 10 American adults.[8] In just the last year, nearly 2400 searchable cases mentioned Facebook.

Facebook, Myspace, and other social media platforms have become inextricably intertwined with American life.[9] Users post intimate details about their everyday activities and, as the above facts demonstrate, social media has also created a new platform for criminal enterprise. Unsurprisingly, this wealth of new information has entered legal disputes[10] and this, in turn, has made the Rule of Evidence a testing ground for the “law of social media.”

Although traditional understanding of First Amendment protection and hearsay concerns have easily been applied to social media records despite their novelty,[11] the same has not proven true for questions of authentication and authorship. While straightforward in principle, authentication rules have proven divisive when applied to social media evidence as jurisdictions have split as to what level of foundational proof is required to admit it.

This article presents a detailed overview of the current and conflicting state of the law regarding authentication standards for admitting social networking records. What jurisdiction one is in will dictate what a proponent must show in order to admit social media records.

General Authentication Standards

Authentication is “satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”[12] This is not generally a high standard[13] and courts need only consider whether the proponent of the evidence has “offered a foundation from which the jury could reasonably find that the evidence is what the proponent says it is.”[14] Importantly, the basis for authentication need not convince the court, but merely provide enough that a jury could ultimately find this burden met.[15]

The federal version of this evidentiary rule, Federal Rule of Evidence (FRE or Rule) 901, like many of its state law counterparts, sets forth an illustrative list of how evidence can be authenticated.[16] As relevant in the social media context, this list includes testimony from a witness with knowledge (i.e., someone familiar with the posting at issue),[17] the comparison of the item in question with an authenticated specimen by an expert witness or trier of fact,[18] or the distinctive characteristics of the evidence (i.e., the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances).[19] Because this list is expressly illustrative, these methods for authenticating evidence are best understood as guidelines for demonstrating an item is what it purports to be.[20]

Are Social Media Records Self-Authenticating?

At the outset, it bears raising whether authentication is even necessary to admit social media records. Under FRE 902, some types of evidence are “self-authenticating” and require no extrinsic evidence of authenticity before admission.[21] Rule 902 lists 12 types of self-authenticating records, including certified domestic records of regularly-conducted activity,[22] which can be authenticated through a certificate from the business records custodian.[23]

But to qualify under the Rule, the record must also meet the “requirements of Rule 803(6)(A)-(C),”[24] which in turn requires the proponent establish: (1) the record was made at or near the time by — or from information transmitted by —someone with knowledge; (2) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; and (3) making the record was a regular practice of that activity.[25]

The two courts that most recently addressed the issue have both held that social media records are not admissible exclusively through self-authentication.[26] Those holdings were based on two conclusions. First, because FRE 803 itself is designed to capture the content of business records that are reliable because they are utilized in the course of ordinary business, the business records exception does not extend to Facebook pages because Facebook does not purport to verify or rely on the substantive contents of the communications in the course of its business.[27] That logic is debatable.[28] But second, and more fundamentally, self-authentication does not eliminate the need to prove relevancy.[29] Before conditionally admitting evidence, under FRE 104(a), the judge must make a preliminary determination of its relevance based on whether a reasonable fact finder could find the evidence to be what it purports to be by a preponderance of the evidence.[30] In social media, this threshold relevance turns on authorship of the postings at issue. Accordingly, to authenticate a Facebook record, a proponent must, at a minimum, present enough evidence allowing a reasonable fact finder to find that the person alleged to have created the post authored that message.[31]

A Nation Divided Approaches

Because social media records are not fully self-authenticating, the question then becomes how much foundational evidence must be presented. A survey of cases that have grappled with the issue suggest that courts apply one of three approaches for admitting social networking evidence.

A. The high bar: the exclusionary fact standard

Although several courts had reached the issue,[32] the Maryland Supreme Court was the first state high court to thoroughly address the question of whether traditional authentication standards should apply to social media records. In Griffin v. State,[33] the state admitted into evidence a post from the defendant’s girlfriend’s Myspace page stating: “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”[34] In reversing the Maryland Court of Appeals’ judgment that the state authenticated the evidence by linking the page to a picture of the defendant’s girlfriend, coupled with her birth date and location, the Maryland Supreme Court held that a printout from a social networking site “requires a greater degree of authentication.”[35]

The Griffin court reasoned a departure from traditional authentication standards was necessary because “[t]he potential for fabricating or tampering with electronically stored information on a social networking site, [] poses significant challenges from the standpoint of authentication of printouts of the site . . . .”[36] That concern “arises because anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password.”[37]

Thus, the Griffin court held that authentication required the state to present some evidence disproving the prospect that someone other than the defendant’s girlfriend could have not only created the site, but also posted the “snitches get stitches” comment.[38] The court identified three different ways the state could have met that standard. First, “would be to ask the purported creator if she indeed created the profile and also if she added the posting in question.”[39] Second, “may be to search the computer of the person who allegedly created the profile and posting and examine the computer’s internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.”[40] Third, “may be to obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it.”[41]

Following Griffin’s lead, in United States v. Vayner,[42] the Second Circuit held that the district court abused its discretion in admitting a printout of a Web page from the defendant’s alleged profile page from a Russian social networking site akin to Facebook in a case involving a forged birth certificate sent via email.[43] Although the Court expressly disavowed the need to decide whether the heightened standard set forth in Griffin should apply,[44] the Second Circuit’s holding effectively applied that exacting standard.

In Vayner, the state presented evidence that the page belonged to “Alexander Zhiltsov” (an alternate spelling of the defendant’s name), contained a photograph of the defendant, and provided that the page’s owner worked at “Martex International” and at an Internet café called “Cyber Heaven,” which corresponded with a witness’s earlier testimony that the defendant worked for those entities.[45] In addition, under the heading, “Contact Information,” the profile listed “Azmadeuz” as the page owner’s address on Skype, significantly matching the People’s evidence that the forged birth certificate was sent from “azmadeuz@gmail.com.”[46]

Despite the ample evidence allowing the jury to infer that the Web page belonged to the defendant, the Second Circuit nevertheless concluded “that the district court erred in admitting the Web page evidence because the government presented insufficient evidence that the page was what the government claimed it to be — that is, Zhyltsou’s profile page, as opposed to a profile page on the Internet that Zhyltsou did not create or control.”[47] The court discounted the state’s evidence because the information contained on the Web page allegedly tying the page to the defendant was also known by the state’s principal witness and “likely others, some of whom may have had reasons to create a profile page falsely attributed to the defendant.”[48]

Like Griffin and Vayner, other courts require proponents to provide evidence that disproves an alternative author could have created the social media evidence.[49] In courts applying this approach, proponents must not only establish that a jury could find the social media evidence is what it purports to be, but also must additionally establish exclusionary evidence to satisfy the court that it was not posted by someone other than the alleged proponent.

B. The legal bar: the reasonable juror standard

On the other end of the spectrum, a majority of courts to consider the issue have applied the same authentication standard to social media evidence as it uses for traditional documentary evidence.Under this lower standard, the party offering the evidence need only make a prima facie showing of authentication. That is, the proponent need only present enough circumstantial evidence allowing a reasonable juror to conclude the evidence is what he or she claims it is. Under this approach, contrary concerns of ownership go to weight not admissibility.

Caselaw and scholarship have traced that approach to the Texas decision, Tienda v. State.[50] In Tienda, the state offered evidence associated with three MySpace personal profiles, including account information and printouts of profile pages on which photographs, comments, and instant messages were posted.[51] The Texas Court of Criminal Appeals held that there was “ample circumstantial evidence—taken as a whole with all of the individual, particular details considered in combination—to support a finding that the MySpace pages belonged to the appellant and that he created and maintained them.”[52]

In Parker v. State,[53] the Delaware Supreme Court adopted this “Texas approach” in concluding that “social media evidence should be subject to the same authentication requirements under the Delaware Rules of Evidence Rule 901(b) as any other evidence.”[54] According to the court, where a proponent seeks to introduce social media evidence, he or she may use any form of verification available under Delaware Rule 901—including witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence in question—to authenticate a social media post.[55] So long as the trial judge as the gatekeeper determines there is sufficient evidence to support a finding by a reasonable juror that the proffered evidence is what its proponent claims it to be, it then is up to the jury to decide whether to accept or reject the evidence.[56]

Like Delaware, the Fourth Circuit,[57] Fifth Circuit,[58] Eight Circuit,[59] Colorado,[60] Georgia,[61] Indiana,[62] Kentucky,[63] Louisiana,[64] Michigan,[65] New Hampshire,[66] New Jersey,[67] New York,[68] Pennsylvania,[69] and Washington,[70] have all held that to authenticate social media records, the proponent need only meet the relatively-modest traditional standard of circumstantially showing the record is what the proponent claims it is.

C. The middle bar: the reasonable juror-plus standard

Although past scholarship has identified only the two previously discussed approaches[71]—a high and low standard—a more comprehensive review of all the case law in this area suggests that several courts have applied a hybrid/middle approach. Not quite going as far as the requiring affirmative disproof that the social media posts did not belong to someone else, those cases have required a separate showing in addition to a foundational fact allowing the jury to find that the printout is what it purports to be. This requires more than the baseline legal approach used for other types of documentary evidence.

For example, the Massachusetts Supreme Court has held that evidence that a communication originated from a social networking website bearing the defendant’s name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant.[72] To admit the record, there must be some “confirming circumstances” sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the communication.[73] Applying this test, in an unpublished decision, the Massachusetts Court of Appeals upheld the district court judge’s decision to exclude the admission of Facebook messages.[74] In that parental rights case over a child, the mother moved to admit “nasty messages” she exchanged with the pre-adoptive mother.[75] To authenticate the messages, the mother called an expert witness who testified that the communications were between the accounts of the mother and the adoptive mother.[76] The district court and court of appeals rejected this testimony as insufficient to authenticate the Facebook messages because there were no “confirming circumstances” showing the adoptive mother actually sent these messages.[77]

The Fifth Circuit reached a similar result in United States v. Winters,[78] in which the prosecution charged defendant with conspiracy to distribute cocaine.[79] Winters allegedly had both Facebook and MySpace accounts that contained evidence of his drug activities.[80] On his Facebook page, the prosecution sought to admit “several pictures of Winters and a photograph of what appeared to be firearms stacked on hundreds of thousands of dollars.”[81] On his “MySpace page, along with pictures of Winters, there was a picture of wrapped packages that resembled many kilograms of cocaine packaged for sale.”[82] Although there did not appear to be a dispute that those pages belonged to Winters, the Fifth Circuit found that the prosecution failed to properly authenticate the photos because Winters did not appear in the images of the inculpatory objects and, therefore, the agent that found them could not show “that Winters, let alone any member of the [charged] conspiracy, had possession or control of the pictured items . . . .”[83]

In jurisdictions applying this reasonable juror-plus approach, to admit the evidence, the proponent must do more than just present some evidence allowing the jury to find that the social media page belongs to the purported person. For example, in addition to presenting evidence linking the defendant to the Facebook page, the proponent could corroborate that evidence by admitting an affidavit from the custodian of the record confirming the accuracy of the printout.[84] Such a showing satisfies this middle bar, as the additional showing that the records have been certified by a third-party provides an additional corroborating fact indicating that the records are what the state claims.

Applying and Understanding Each Approach

Returning to “Brooklyn” and the social media murder discussed at the outset, authenticating the Facebook evidence for this contract killing will require a different quantum of authentication depending on where this prosecution is taking place.

In the majority of jurisdictions applying the reasonable juror approach that comports with general Rule 901 authentication standards, Brooklyn’s messages showing both his motive and the “green light” to murder the victim can be admitted through any of the following foundational evidence:

· the user identified himself using a name that was the same as, or a derivative of, the defendant’s legal name or nickname;

· the registered name for the account was the same as, or a derivative of, the defendant’s legal name or nickname (e.g., Brooklyn’s Facebook account was registered to Julius Glover, which was his middle name and last name);

· the user’s stated email address included or was derived from the defendant’s legal name or nickname;

· the user’s stated location was the same city in which the charged offense took place;

· the user referred to distinctive details about the offense;

· the user profile includes pictures of the defendant;

· other witnesses identify the account as belonging to the defendant or as one the defendant used to communicate with the witness in the past;

· the user provided a phone number to verify the account with Facebook and that number matches the defendant’s number;

· a witness testifies about discussing the social media posts with the defendant (as the killer in this case did by discussing the planned murder with Brooklyn offline); or

· the profile name/user name on the account is a name the defendant is known by offline (as in this case when defendant became known as “Brooklyn” to people who knew him).

Because any of this evidence, perhaps even individually, would lead a reasonable juror to conclude the evidence is what it purports to be (i.e., Brooklyn’s Facebook postings), it is admissible in jurisdictions applying the standard Rule 901 authentication standards.[85] The advantages to this approach are that it places social media evidence on the same footing as any other form of documentary evidence and allows jurors to assess the credibility of the evidence as its baseline relevance is necessarily established by foundational evidence that the postings are what they purport to be.

By contrast, the minority exclusionary fact approach goes beyond relevance and places the court in the position of assessing the credibility of the evidence – by requiring affirmative disproof of the possibility that the social media evidence could have been created by others. Under the fact pattern, this would have required the foundational evidence discussed above in addition to proof that the defendant was the only person who could be responsible for the postings, such as:

· technical evidence (e.g., IP addresses or hard drive evidence) showing the Facebook posts came from Brooklyn’s smartphone or the computer he could be proven to be using at the time of the posts;

· records custodian evidence from Facebook verifying the defendant as the person responsible for the Brooklyn account; and

· evidence regarding the security on the account or otherwise disproving the potential for alternative suspects to have used the Brooklyn account to frame defendant.

As a practitioner, it is difficult to anticipate whether it will even be possible to authenticate social media evidence in exclusionary rule jurisdictions because it is unclear what level of affirmative disproof will be necessary to satisfy a particular trial judge. This is problematic, particularly because the types of proof these jurisdictions have called for may not serve the purposes for this rule, short of direct evidence of a witness physically watching Brooklyn make the posts at issue.

That said, the ultimate issue in authentication remains one of relevance because the social media evidence is only relevant to the extent it is what it purports to be (e.g., Brooklyn’s postings). Accordingly, for practitioners who find themselves in exclusionary rule jurisdictions, it may be useful to frame the issue in relevance terms and insist the court apply FRE 403 to balance the relevance of the proposed social media evidence and foundational proof of defendant’s authorship against the potential for undue prejudice from case-specific facts that raise a real possibility that someone else is responsible for the postings.

Finally, the hybrid reasonable juror-plus approach effectively places a Rule 403 gloss on top of the standard Rule 901 authentication rules by asking proponents to provide anything to help corroborate the authorship of the social media evidence. This plus factor could be proven by any of the additional forms of evidence required in exclusionary rule jurisdictions or even by a combination of more straightforward evidence that may be individually sufficient in pure reasonable juror courts. For example, custodial records that corroborate the defendant’s association with the account through his phone number or email address should be enough to satisfy the plus factor requirement of these jurisdictions. While more defensible than the stringent exclusionary rule that drags courts into the jury’s role of credibility assessment, this hybrid approach is unprincipled and asks proponents to go beyond the Rule 901 standards of authentication for no reason other than that social media evidence is new, and therefore, untrustworthy.

Conclusion

While the growing role of social media evidence has led most jurisdictions to weigh in on the debate on how to authenticate and admit this evidence, there remain sharp contrasts as to the level of foundational proof that will be required. For the reasons stated above, practitioners in uninitiated jurisdictions can justifiably push courts towards the reasonable juror approach which is more principled than the hybrid approach and simply applies Rule 901 equally to all types of evidence, including social media evidence. But, until all courts agree on how to address the social media phenomenon, whether the evidence comes in will continue to depend more on the location of the court than the evidence itself.


[1] People v. Glover, 363 P.3d 736, 738 (Colo. App. 2015).

[2] Id. at 738-39.

[3] Id. at 738.

[4] Id.

[5] Id. at 739.

[6] See, e.g., Justin P. Murphy & Adrian Fontecilla, Social Media Evidence in Government Investigations and Criminal Proceedings: A Frontier of New Legal Issues, 19 Rich. J.L. & Tech. 11(2013).

[7] Paul W. Grimm, Lisa Yurwit Bergstrom & Melissa M. O’Toole-Loureiro, Authentication of Social Media Evidence, 36 Am. J. Trial Advoc. 433, 437 (2013).

[8] Shannon Greenwood et al., Pew Res. Ctr., Social Media Update 2016, http://www.pewinternet.org/2016/11/11/social-media-update-2016.

[9] Sarah D. Davis, Social Media Activity & the Workplace: Updating the Status of Social Media, 39 Ohio N.U.L. Rev. 359, 362 (2012).

[10] In the criminal context, a 2012 survey of law enforcement officers found four out of five used social media platforms in criminal investigations. See Press Release, Lexis Nexis Risk Solutions, Role of Social Media in Law Enforcement Significant and Growing, July 18, 2012, http://www.lexisnexis.com/en-us/about-us/media/press-release.page?id=1342623085481181.

[11] Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1657, 191 L. Ed. 2d 570 (2015) (“[N]obody argues that [Keefe’s Facebook postings are] a category of unprotected speech. . . . [T]he First Amendment fully applies to [that] speech. The question is instead whether that Amendment permits the particular regulation of speech at issue here.”); United States v. Lewisbey, 843 F.3d 653, 658 (7th Cir. 2016). (“The hearsay objection is a nonstarter. The text messages Lewisbey sent are his own statements and as such are excluded from the definition of hearsay by Rule 801(d)(2)(A). The messages he received were admitted not for the truth of the matter asserted but instead to provide context for Lewisbey’s own messages.”).

[12] Fed. R. Evid. 901(a); see Fed. R. Evid. 901(a) advisory committee’s note to 1975 proposed rule; 5 Saltzberg, Martin & Capra, Federal Rules of Evidence Manual § 901.02[1] at 901-8 (8th ed. 2002).

[13] See, e.g., United States v. Reilly, 33 F.3d 1396, 1404 (3d Cir. 1994) (“[T]he burden of proof for authentication is slight.”).

[14] 5 Saltzberg et. al, supra note 12, § 901.02[1], at 901-5–901-6; see United States v. Coohey, 11 F.3d 97, 99 (8th Cir. 1993) (“[T]he proponent need only demonstrate a rational basis for its claim that the evidence is what the proponent asserts it to be.”) (citing United States v. Long, 857 F.2d 436, 442 (8th Cir. 1988).

[15] 31 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure: Evidence § 7102 at 16 (2000).

[16] See Fed. R. Evid. 901(b); Colo. R. Evid. 901(b). See also Tienda v. State, 358 S.W.3d 633, 639 (Tex. Crim. App. 2012) (noting that “jurisdictions across the country have recognized that electronic evidence may be authenticated in a number of different ways consistent with Federal Rule 901 and its various state analogs”).

[17] Fed. R. Evid. 901(b)(1).

[18] Fed. R. Evid. 901(b)(3).

[19] Fed. R. Evid. 901(b)(4).

[20] See United States v. Dean, 989 F.2d 1205, 1210 n.7 (D.C. Cir. 1993) (“The rule contains an illustrative, but not exhaustive, list of suggested methods of authentication[.]”).

[21] Fed. R. Evid. 902.

[22] Id.

[23] Fed. R. Evid. 902(11).

[24] Id.

[25] Fed. R. Evid. 803.

[26] United States v. Browne, supra note 1, 834 F.3d 403, 409-10 (3d Cir. 2016); Glover, 363 P.3d at 736.

[27] Browne, 834 F.3d at 410-11.

[28] Facebook’s terms of service state:

Our goal is to deliver advertising and other commercial or sponsored content that is valuable to our users and advertisers. In order to help us do that, you agree to the following . . . You give us permission to use your name, profile picture, content, and information in connection with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. This means, for example, that you permit a business or other entity to pay us to display your name and/or profile picture with your content or information, without any compensation to you. If you have selected a specific audience for your content or information, we will respect your choice when we use it.

See Statement of Rights and Responsibilities, www.facebook.com/terms.php (last revised Jan. 30, 2015).

[29] Browne, 834 F.3d at 410.

[30] Fed. R. Evid. 104(a).

[31] Although the Third Circuit and the Colorado Court of Appeals moved to distinguish the Fourth Circuit’s holding in United States v. Hassan, 742 F.3d 104 (4th Cir. 2014), no distinguishing was necessary as it reached the same result.

[32] State v. Bell, 882 N.E.2d 502, 511 (Ohio Ct. Com. Pl. 2008).

[33] 19 A.3d 415 (Md. Ct. App. 2011), cert denied, 2014 Md. LEXIS 492 (Md. July 21, 2014).

[34] 19 A.3d. at 416.

[35] Id. at 424.

[36] Id. at 422.

[37] Id. at 421.

[38] Id. at 424.

[39] Id. at 427.

[40] Id.

[41] Id. at 428.

[42] 769 F.3d 125, 132 (2d Cir. 2014).

[43] Id. at 127.

[44] Id. at 131 n.5.

[45] Id. at 128-29.

[46] Id. at 127-28.

[47] Id. at 127.

[48] Id. at 132.

[49] United States v. Jackson, 208 F.3d 633, 636-37 (7th Cir. 2000) (to authenticate the website postings, the defendant “needed to show that the web postings in which the white supremacist groups took responsibility for the racist mailings actually were posted by the groups, as opposed to being slipped onto the groups’ web sites by [the defendant] herself, who was a skilled computer user”); State v. Eleck, 23 A.3d 818, 822 (Conn. App. Ct. 2011) (recognizing that the emergence of authenticating social media records created unique problems, and “an electronic communication, such as a Facebook message, . . . could be generated by someone other than the named sender”); Commonwealth v. Williams, 926 N.E.2d 1162, 1172-73 (Mass. 2010) (admission of MySpace message was error where proponent advanced no circumstantial evidence as to security of MySpace page or purported author’s exclusive access because “while the foundational testimony established that the messages were sent by someone with access to [defendant]’s MySpace Web page, it did not identify the person who actually sent the communication. Nor was there expert testimony that no one other than [defendant] could communicate from that Web page”); Smith v. State, 136 So. 3d 424, 433 (Miss. 2014) (“Because of the special concerns regarding fabrication, the fact that an electronic communication on its face purports to originate from a certain person’s social networking account is generally insufficient standing alone to authenticate that person as the author of the communications.”) (internal quotations omitted).

[50] 358 S.W.3d 633 (Tex. Crim. App. 2012).

[51] Id. at 634-35.

[52] Id. at 645.

[53] 85 A.3d 682, 688 (Del. 2014).

[54] Id. at 687.

[55] Id. at 687-88.

[56] Id. at 688.

[57] United States v. Hassan, 742 F.3d 104, 133 (4th Cir. 2014) (“Importantly, the burden to authenticate under Rule 901 is not high—only a prima facie showing is required, and a district court's role is to serve as gatekeeper in assessing whether the proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.”) (internal quotations omitted).

[58] United States v. Barnes, 803 F.3d 209, 217 (5th Cir. 2015) (recognizing that the standard for authentication is not a burdensome one, and conclusive proof of authenticity is not required).

[59] Browne, supra note 26, 834 F.3d at 412-15.

[60] Glover, supra note 1, 363 P.3d at 742-43.

[61] Burgess v. State, 742 S.E.2d 464, 467 (Ga. 2013) (“Documents from electronic sources such as the printouts from a website like MySpace are subject to the same [state] rules of authentication as other more traditional documentary evidence and may be authenticated through circumstantial evidence.”); Cotton v. State, 773 S.E.2d 242 (Ga. 2015) (holding that social media records are subject to the same rules of authentication).

[62] Wilson v. State, 30 N.E.3d 1264, 1269 (Ind. Ct. App. 2015) (holding that username, pictures, content of Twitter profile sufficient to authenticate page).

[63] Simmons v. Commonwealth, 2012-SC-000064-MR, 2013 Ky. Unpub. LEXIS 7, at *7 (Ky. Feb. 21, 2013) (recognizing that authenticating a social media record, like a writing, is “slight” and requires only a prima facie showing (citing Ordway v. Commonwealth, 352 S.W.3d 584, 593 (Ky. 2011)).

[64] State v. Smith, 192 So. 3d 836, 845 (La. Ct. App. 2016) (“On remand, the trial court shall decide whether the State has supplied evidence (direct or circumstantial) that is sufficient to support a reasonable jury conclusion that the evidence it seeks to introduce at trial is what the State purports it to be. If the State successfully carries its burden, then the trial court must find the evidence admissible.”).

[65] People v. Dunn, No. 323403, 2016 Mich. App. LEXIS 942, at *24 (Mich. Ct. App. May 12, 2016) (“It is axiomatic that proposed evidence need not tell the whole story of a case, nor need it be free of weakness or doubt. It need only meet the minimum requirements for admissibility.” (Citing People v. McDade, 301 Mich. App. 343, 353 (Mich. Ct. App. (2013) (citation omitted)).

[66] State v. Palermo, 129 A.3d 1020 (N.H. 2015) (“After a review of the record, we conclude that our established rules governing authentication are sufficient to address the issues in this case.”).

[67] State v. Hannah, 2016 N.J. Super. 78, 89 (N.J. Super. Ct. App. Div. 2016) (“We need not create a new test for social media postings.”).

[68] People v. Clevenstine, 891 N.Y.S.2d 511, 514 (N.Y. App. Div. 2009) (admitting MySpace messages into evidence through traditional authentication procedures), appeal denied, 925 N.E.2d 937 (N.Y. 2010).

[69] In re F.P., 878 A.2d 91, 93-95 (Pa. Super. Ct. 2005) (holding instant messages properly authenticated through circumstantial evidence including screen names and context of messages and surrounding circumstances).

[70] State v. Fawver, No. 32271-8-III, 2015 Wash. App. LEXIS 1208, at *8 (Wash. Ct. App. June 9, 2015) (unpublished) (“Given the unique comment posted so close in time to the assault, the fact that a friend of Mr. Fawver recognized it as his Facebook page, the name on the post matched Mr. Corey Fawver’s name, the picture was identified as the picture of Mr. Fawver, and the fact that Facebook is widely known to generally be password protected, the Facebook post appears to have been properly authenticated.”).

[71] See, e.g.,Wendy Angus-Anderson, Authenticity and Admissibility of Scoial Media Website Printouts,14 Duke L. & Tech. Rev. 33 (2015); Elizabeth A. Flanagan, Guilty? Sublet v. State and The Authentication of Social Media Evidence in Criminal Proceedings, 61 Vill. L. Rev. 287, 293 (2016); Douglas J. Cummings, Jr., Authenticating Social media Evidence at Trial: Instruction from Parker v. State, 15 Del. L. Rev. 107, 108 (2015); Michael J. Hannon, Feature, An Increasingly Important Requirement: Authentication of Digital Evidence, 70 J. Mo. B. 314, 319 (2014); Parker v. State, 85 A.3d 682, 686-88 (Del. 2014).

[72] Commonwealth v. Purdy, 945 N.E.2d 372, 381 (Mass. 2011).

[73] Id.

[74] Adoption of Nash, No. 15-P-1302,2016 Mass. App. Unpub. LEXIS 520 (Mass. App. Ct. 2016).

[75] Id. at *5-6.

[76] Id. at *6.

[77] Id. at *9.

[78] 530 Fed. Appx. 390 (5th Cir. 2013). Notably, the Winters decision applying the hybrid reasonable juror-plus approach is inconsistent with that same Circuit’s more recent application of the standard reasonable juror approach in Barnes. See 803 F.3d at 217.

[79] Winters, 530 Fed. Appx. at 393.

[80] Id. at 394.

[81] Id.

[82] Id.

[83] Id. at 395.

[84] Commonwealth v. Foster F., 20 N.E.3d 967, 971 (Mass. App. Ct. 2014).

[85] See Hassan, 742 F.3d at 133; Barnes, 803 F.3d at 217; Browne, 834 F.3d at 412-15; Glover, 363 P.3d at 742-43; Parker, 85 A.3d 687-88; Cotton, 297 Ga. at 260; Wilson, 30 N.E.3d at 1269; Simmons, 2013 Ky. Unpub. LEXIS 7; Smith, 192 So. 3d at 845; Dunn, 2016 Mich. App. LEXIS 942; Palermo, 129 A.3d 1020; Hannah, 2016 N.J. Super. at 79; Clevenstine, 891 N.Y.S.2d at 514; In re F.P., 878 A.2d at 93-95; Fawver, 2015 Wash. App. LEXIS 1208, at *8.

Who's My AG?

Find the attorney general who represents you.

Meetings & Trainings

Stay informed of NAAG meetings and the NAGTRI trainings we offer.

AG Spotlight

Steve Marshall, Alabama Attorney General

Steve Marshall was appointed to the position of Alabama attorney general in February 2017.