Those who practice law understand and appreciate the power of precedent. As technology evolves, and as our digital world continually expands, the law is evolving with it. Courts across the country are continuing to examine social media as evidence the standards that must be met for it to be admitted and authenticated. Attorneys who want to provide the most effective representation for their clients need to stay ahead of the social media curve. This means not only remaining informed as to how social media is being used as evidence, but also staying abreast of what standards must be met to properly authenticate it.
Increasingly, our world is one in which we are more connected than ever through social media in all of its various forms. In many respects, this is wonderful – it allows us to stay close to family and friends near and far, to be instantly informed about news and world affairs, and to conduct business more efficiently than ever. In fact, it is estimated that at any given minute, approximately 347,222 people are scrolling through Instagram. 1.5 billion people are using Facebook each day, and 326 million people are using Twitter each month. These numbers are only continuing to grow. It goes without staying then that in any given day, an incredible amount of content is created and posted on social media platforms across the country and around the world. Increasingly, that content is being used as evidence in legal matters around the country. Consider the following cases from a variety of practice areas:
· Personal Injury and Insurance Fraud : In the recent case of Largent v. Reed , the plaintiff claimed that recent accident had left her in severe physical and mental pain. During the course of litigating the claim, defense counsel presented the court with plaintiff’s post-accident photos, which she had posted to her Facebook account. Those photos clearly indicated that plaintiff was well enough to engage in her daily activities, including attending the gym regularly, and otherwise enjoy all of her normal activities. The court allowed that evidence to be admitted for purposes of arguing against her claim. Also consider the recent case of in which a police officer in New York was collecting disability, claiming that his right arm was injured so badly that he could barely move it. Insurance investigators later found footage of that same officer on tour with his punk rock band, fist-pumping wildly with the same right arm. These are only two of countless cases in which social media evidence has played a pivotal role. The truth of the matter is that we are all so used to sharing our lives on social media that many people simply post without thinking, and that content can often be used as evidence in court to prove any number of things – that the plaintiff is not suffering from certain injuries as they claim, that the injuries are not as serious as claimed, or that the plaintiff’s life has not been as negatively affected by the injury as they allege.
· Family Law : A 2016 decision by the Court of Appeals of Louisiana in Shaw v. Young held that the “husband’s repeated emails and text messages to his wife and his repeated postings on his social media account about her constituted cyber stalking, which qualified as domestic abuse and thus supported the issuance of a permanent protective order.” In that case, the husband sent electronic messages to the wife and posted negative things about her online, leading the wife to testify that her husband posted messages on Facebook about her immigration status and threatened to release private photographs of her to others. The court allowed evidence of the husband’s social media activity and messaging to be used in the case, finding that it was probative and relevant. In another case, a wife was awarded nearly $1000 in monthly alimony payments due to injuries from an accident that allegedly left her unable to work. Her ex-husband, however, discovered images on Instagram of the wife taking part in a new running club that she had joined with friends, as well as vacation photos of a recent trip with her new boyfriend where she was featured swimming, hiking, and horseback riding. The husband and his attorney decide to use these photos and other related social media content as evidence to argue that the ex-wife is in fact far more capable of working than she claimed. These are only two examples of many cases of this nature. Clearly, then, social media evidence is playing an increasingly central role in family law matters. According to a recent survey, 81% of attorneys discover social networking evidence worth presenting in court, and 66% of cases involving divorce employ Facebook as one of their principal sources of evidence. In fact, it is estimated that a full one-third of all legal action in divorce cases today is precipitated by affairs which are conducted online. These statistics are telling – social media is playing a critical and important role in divorce litigation, and for an attorney to effectively use (or defend against) social media evidence in a divorce case, it is important to understand how to collect such evidence, and how to ensure that it is properly authenticated.
· Criminal Law : In a recent 2018 opinion in Commonwealth v. Mangel , the Superior Court of Pennsylvania unanimously affirmed the decision of the trial court to deny a criminal prosecutor’s motion in limine to introduce evidence from social media supposedly authored by the defendant, Tyler Mangel. The court determined that the information identifying the defendant was not enough to allow the Facebook posts as evidence, finding that it is too easy to falsify accounts and posts on social media, and that there is a high standard of authentication for social media evidence.
Clearly, social media evidence is playing an increasingly important and central role in the determination of cases across the entire spectrum of legal practice. This trend is only expected to increase, with the prolific and ever-expanding use of social media across the country and around the world. As an attorney who wants to stay ahead of the curve, it’s important to remain aware of how courts are treating this evidence, what is being required for admissibility, and how to ensure that the evidence you collect meets and exceeds that threshold. After all, evidence is only worth collecting if it can ultimately be authenticated and admitted.
How Courts View Authentication and Admissibility
As is the case with any number of legal matters, different jurisdictions have employed different standards with respect to the authentication and admissibility of social media evidence. Generally, three social media authentication standards have been employed:
· The Reasonable Juror Standard : Also known as the “Texas Standard,” in light of the court’s holding in Tiende v. State of Texas , courts that follow this standard have determined that social media content does not require an authentication standard beyond that which would be required for traditional “hard copy” evidence. Thus, a party must present enough evidence to enable a reasonable juror to conclude that the evidence is what is proponent claims it to be.
· The Reasonable Juror - Plus Standard : Several courts around the country have applied a standard slightly higher than the reasonable juror standard, as demonstrated by the 2017 holding in People of Illinois v. Kent . In these jurisdictions, in addition to proving that the evidence is what the proponent claims it to be, courts may require a little more. In those case, the courts may require additional evidence corroborating that the social media evidence is genuine, though what exactly may be required can vary from jurisdiction to jurisdiction.
· The Exclusionary Fact Standard : These jurisdictions employ the highest bar for the admission and authentication of social media evidence, as demonstrated in the Maryland Supreme Court’s opinion in Griffin v. State of Maryland . In that case, and in jurisdictions that follow this standard, the proponent must meet a higher standard to prove authentication, by proving definitively that no one else was the author of the content sought to be admitted. In cases with stricter standards for admission like Griffin and Mangel, then, anyone wishing to use social media evidence in a case must present direct or circumstantial evidence that corroborates the identity of the author.
Ultimately, then, courts across the country vary somewhat in the standards that they apply for the authentication and admission of social media evidence. Knowing this, and knowing that these standards are evolving and changing, it is wise to ensure that you collect evidence that meets and exceeds the most stringent of these standards. We know of very few firms that want to scramble in meeting varying standards set in varying jurisdictions with inefficient and outdated methods like screenshots and affidavits, spending countless otherwise billable hours printing, organizing, and attempting to gather enough circumstantial evidence to pass the evidentiary hurdle in the specific jurisdiction in which they are litigating.
The Federal Rules of Evidence are evolving, and legal practices, to stay ahead of the curve, must evolve with them. Thanks to the recent amendments to FRE 902, the new allowance for self-authenticating evidence now means that no longer will the introduction of social media evidence routinely require the testimony of a forensic or technical expert for purposes of authentication. Instead, this electronic evidence can now be certified through a written declaration attesting to a verified hash value of the proffered piece of electronic evidence, and that it was identical to the original.
Indeed, according to the American Bar Association,
When there is no dispute as to authenticity of ESI, 902(13) and (14) should help achieve the laudable goal of reducing the expense of litigation. Rather than present live testimony of a foundation witness, the proponent establishes authenticity under 902(13) and (14) by presenting a certification containing information that would be sufficient to establish authenticity if the information were provided by testimony at a hearing or trial  .
This news regarding the authentication of social media evidence is excellent for those attorneys wishing to truly continue to propel their professional practice forward into a future where digital and social media will remain predominant and critical sources of evidence. This new rule considers the changeable nature of social media, and the fact that only technology can provide a proper means of verifying its authenticity.
WebPreserver provides what you need to validate online evidence, and ensures the preservation workflow is simple enough for anyone. With WebPreserver, there is no need to manually collect Metadata, or stake your claim solely on a third party witness who would need technology to attest to its validity regardless. When you use WebPreserer, you are using a product that generates forensic reports utilizing a SHA256 hash, and HTML source code. It preserves authentic evidence, and provides peace of mind.
Call us today to discuss adopting the WebPreserver Plug-in to begin gathering the evidence you need to win cases on behalf of the clients who rely on you. Don’t litigate another case without the benefit of being able to collect the evidence you need, when you need it, knowing that when you do, it will be organized, easy to access, and maintained in pristine, recognizable, and easily exportable formats.