834 F.3d 403 (3rd. Cir. 2016)
Appellant Tony Jefferson Browne was convicted of child pornography and sexual offenses with minors based in part on records of "chats" exchanged over Facebook and now contests his conviction on the ground that these records were not properly authenticated with evidence of his authorship. The court stated that, “The advent of social media has presented the courts with new challenges in the prosecution of criminal offenses, including in the way data is authenticated under the Federal Rules of Evidence — a prerequisite to admissibility at trial.” Court ultimately disagreed that the contents of these communications were "self-authenticating" as business records accompanied by a certificate from the website's records custodian, but affirmed because the trial record reflected more than sufficient extrinsic evidence to link Browne to the chats under a conventional Rule 901 analysis.
(D.C. No. 1:12-CV-01546-RBJ) (D. Colo. July 27, 2016)
This case arose out of a personal injury from a major rollover traffic accident and illustrates the importance of performing a diligent and timely social media evidence investigation. The jury awarded the Plaintiff $832,000, finding that she incurred severe pain from her injuries, which impacted her social life and daily activities. Post-trial, a paralegal for the defense counsel found a litany of Facebook evidence apparently showing the Plaintiff taking a trip to Las Vegas, visiting nightclubs, attending a wedding and smiling happily with friends at restaurants. Despite this newly discovered Facebook and Facebook-derived evidence, the district court denied Knight Transportation’s motion, finding that “the new (Facebook) evidence could have been discovered before trial and Knight offered no justification for its failure to develop it earlier.” This decision illustrates the importance of performing a diligent and timely social media evidence investigation, most certainly before trial.
(No. 14-0583) (C.A. Iowa, August 17 2016)
Defendant brought a motion for mistrial after it was discovered (post-trial) through key Facebook evidence that several jurors appeared to be associated with the key witness, despite those jurors’ denials during voir dire. However, the court disallowed the screenshots of the Facebook pages as lacking proper authentication and denied the motion for mistrial. This case underscores the necessity of a timely and proper social media investigation (not mere screen shots), as well as the general importance of conducting social media due diligence on prospective and empaneled jurors.
(La. Court of Appeals, April 20, 2016)
In yet another court decision illustrating why software that supports best practices is needed to properly collect and preserve social media evidence, the Louisiana appellate court, 4th Circuit, issued a written opinion in a felony criminal case disallowing key social media evidence due to a lack of authenticity. Under cross-examination, the police officer, who offered the evidence in the form of screen shots, conceded that she lacked any corroborating circumstantial evidence to support the authentication of the social media posts. The appellate court ultimately ruled: “We find the social media posts the state seeks to introduce at trial were not properly authenticated, as the state presented no evidence in order to carry its burden at the hearing.”
Ill. App. (Unpub.)(LEXIS 957)(2016)
In which the Illinois Court of Appeals found that the trial court erred by excluding authenticable copies of Facebook messages while admitting testimony about messages. Copies of messages were found to be relevant to the defendant’s state of mind or intent, as well as to impeach testimony and attack witness capability.
843 F.3d 653 (7th Cir. 2016)
David Lewisbey was a Chicago-based gunrunner who used fake identification to buy guns at Indiana gun shows and bring them back to Illinois to sell. He came to the attention of law enforcement when he boasted about his gunrunning exploits on Facebook. Lewisbey challenged the admission of incriminating text-message and Facebook evidence at trial. In this particular case, substantial amounts of corroborating evidence existed, leading the court to find that the Facebook evidence was properly authenticated, noting that, “The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances,” can establish that “the item is what the proponent claims it is.” Of additional note, in this case, the defendant ultimately admitted that the Facebook page was his, thereby eliminating the need for extensive circumstantial corroboration.