Commonwealth v. Banas 
A History of Social Media Evidence: Facebook Circumstantial Evidence
In this relatively recent case, the admissibility of social media evidence was disputed when the defendant was convicted of larceny, and during the original trial a Screenshot from his Facebook page was admitted as evidence.
Yet the appeal court held that as no additional circumstantial evidence was provided with this submission, there was no viable means of proving authenticity of the Facebook printout.
Authenticating Social Media with Circumstantial Evidence
This ruling followed that of Commonwealth v. Purdy , in which the court found that “evidence that…originates from an e-mail or social networking website such as Facebook or MySpace that bears the defendant’s name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant”. Previous to the finding in Purdy, in Commonwealth v. Williams, 456 Mass. 857, 869 (2010), the Court held that “a message from an individual’s Web page was not sufficient to authenticate that the individual wrote the message. Evidence of additional confirming circumstances is needed to authenticate the message.”
Word of Warning....
In light of this “what not to do” standard, it can be presumed that without utilizing best practices, eDiscovery measures, technology, additional scrutiny, and instead relying on mere screen prints of social media or online evidence, at best a party is facing a long, costly court challenge and retrials with no succinct measures of proactive preservation and presentation of ESI. At worst, and most likely if precedents are correct, the evidence shall be deemed unauthentic and admissible, significantly detrimental to a party’s claim, incur additional attorney fees and potentially have a case thrown out.
The Role of WebPreserver
WebPreserver is an innovative eDiscovery tool, essential for the effective and easy creation of evidence from ESI and preservation of digital content for litigation purposes, aimed specifically at legal professionals, litigation support and law enforcement officials.
Snapshots of social media content are created and authenticated with the efficient and simple use of a Plug-in and single-click capture in line with Federal Rules of Evidence and other compliance standards, creating reliable evidence for litigation proceedings.
Snapshots are saved in both PDF and WARC formats and authenticated with the advanced technology of both an e-signature (in compliance with the E-Sign Act) and an automated time stamp giving integrity to content taken from social media. WebPreserver provides the additional resources of an online sharing platform where litigation support and legal professionals can share personal files of evidence with colleagues and clients, download them locally, and organise with keyword tagging.
The growing importance of social media content as evidence in the courtroom means that firms and law enforcement authorities should have a simplified, cost and time effective records management structure in place to ensure fair trials and outcomes – WebPreserver is the essential eDiscovery tool that provides such a service
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.