California Court allows Instagram Evidence

Authenticating Instagram evidence still obstacle in social media case


The most recent update on Social Media Evidence and Social Media #fails was handed down from a California appeals court in In re K.B, in relation to a criminal firearms conviction - where Instagram images posted from “40glock” (the defendant’s) social media account were accepted as primary evidence.

The First District Court of Appeal, following a line of precedent regarding the admissibility of social media evidence in criminal convictions, accepted evidence of the defendant (K.B, a minor) as being properly authenticated.

The incriminating anti-social media post consisted of KB (accompanied by another individual) with a gun tucked into waistband of his pants

The minor’s attorney raised the objection of admissibility of the photo as evidence, on the grounds that authentication of the image was needed and that the evidence was not accompanied by witness testimony. Defence attorneys in these circumstances have often raised this argument, claiming a requirement of proof from prosecutors establishing that photos are in fact that which they claim to be depicting. The court, under the guidance of Justice Ignazio Ruzolo, found however that the evidence accompanying the photos amounted to a sufficient degree of admissibility. The accompanying evidence came from San Francisco police department’s “Instagram officer” Eduard Ochoa.

Officer Ochoa discovered the photos of KB, a known criminal, in October 2013 whilst conducting an Instagram search. Ochoa and a colleague located the apartment shown in the photograph and what they witnessed there provided witness testimony to authenticate the image:

  • two handguns were thrown out the window when the police identified themselves
  • KB appeared to be wearing the same clothes as in the Instagram photo
  • the same image was also found on a confiscated cellphone

Admitting Social Media Evidence - Current Legal Stance

The Justice Ruvolo took the opportunity in delivering his decision to highlight the inconsistencies of standards of admitting social media evidence, especially in the recent aftermath of the Supreme Courts’ decision in People v Goldsmith - splitting the court over the admissibility of MySpace photos and finding that the standard of evidentiary requirement within a photo "need not be supplied by the persons taking the photograph or by a person who witnessed the event” - opening the floodgates to negating witness testimony by way technology, forensics, circumstantial evidence and more.


Though the barriers to authenticating evidence are varying - they undoubtedly exist. Outcomes such as In re KB, People v. Franco and People v. Goldsmith show that even witness testimony is not the most reliable way to authenticate evidence in line Federal Rules of Evidence, which state that; “[T]he proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is”.

Role of WebPreserver

WebPreserver is an innovative eDiscovery tool, essential for the effective and easy creation of evidence from social media and preservation of digital content for litigation purposes; an essential cost and time effective tool for legal professionals, litigation support and law enforcement officials.

With the easy installation of a Plug-in and single-click capture technology, WebPreserver software creates snapshots of evidence from any content place in the internet and stores them in PDF and WARC formats for use in litigation. Digital content is authenticated in line with Federal Rules of Evidence, the E-Sign Act and other standards of compliance by way of a digital e-signature and automated time-stamp.

Not only is strong, reliable evidence created form online content, WebPreserver software also provides secure resources for the archiving, preservation and sharing of this content. Once a Snapshot is created, it can be downloaded or stored on our online platform and shared with clients and colleagues in personal folders, with the additional features of keyword tagging.

Ensure that when engaging in litigation you maintain a high standard of records management and technical compliance; WebPreserver is a simple but effective means of doing this. Avoid sanctions and additional administrative and Discovery costs with the proper utilisation of this leading eDiscovery software.

The information and materials on this blog are provided for general and informative purposes only and are not intended to be construed as legal advice. Content on this blog is not intended to substitute the advice of a licensed attorney, as laws are subject to change and vary with time, from jurisdiction to jurisdiction. Content on this blog may be changed without notice and is not guaranteed to be complete, correct or up-to-date.


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