#SocialMediaAsEvidence

Laura Gerdes Long

By Laura Gerdes Long

Authored by Laura Gerdes Long with assistance from Jessica A. Gottsacker

Social media has officially taken over our lives. The statistics only confirm this fact. There are 2.3 billion active social media users across the world. Any given internet user has an average of five social media accounts. Facebook has over 1.71 billion users, YouTube has over 1 billion users, and WhatsApp has 900 million users. Every day, there are 60 billion messages sent through Facebook messenger and Whats-App. Three hundred hours of videos are uploaded on YouTube every minute. Snapchat users watch 6 billion videos on average a day.

It is clear that an individual’s accounts contain a plethora of intimate, personal details meant to be shared exclusively with friends or a fan base. But this begs the question, with this personal nature of social media, what can be excluded from court? The answer: potentially none of it.

This does not mean, however, that your client’s twitter rant is automatically coming into play. For the electronically stored information (ESI) to be admitted, a party must show the information is relevant, authentic, not substantially more prejudicial than probative, not hearsay, and consistent with the best evidence rule.

Authentication is established by “evidence sufficient to support a finding that the matter in question is what its proponent claims.” In other words, the party seeking to have the evidence admitted must prove the evidence is what it purports to be. Authenticating the evidence may be achieved by direct proof, such as testimony from the author of the post, or through circumstantial evidence. Circumstantial evidence includes previous related posts or identifying traits of the social media account that indicate the user of the account is the author of the post.

Courts have allowed circumstantial evidence in varying degrees. It was previously understood that while a social media profile is available to the public, only the individual who has access to the login information has the ability to upload content; thus, it was reasonable to believe that based on the information and photos posted to the account, the owner was also the author of the post. However, this understanding was recently turned upside down in Commonwealth v. Mangel when a Pennsylvania Superior Court denied the admission of social media content allegedly authored by the defendant. The court concluded that the information identifying the defendant was not sufficient to admit the Facebook posts into evidence. It is too easy to falsify accounts and posts on social media because anyone can create a profile under a fictitious name and access another’s profile simply by accessing the person’s username and password. As a result, admissibility of the posts requires not only proof that the individual was the owner of the email address, Facebook account, Twitter account, etc., but that no one else could have authored the post and that the defendant, in fact, did author the post. Missouri has so far maintained the more lenient standard of utilizing more circumstantial evidence to prove authorship of posts.

Additionally, blogs are not self-authenticating. Authentication of internet printouts requires “a witness declaration in combination with the document’s circumstantial indicia of authenticity (i.e. the date and web address that appear on them) to support a reasonable juror in the belief that the documents are what the declarant says they are.”

Hearsay objections will not typically exclude social media posts from evidence. Under the rules of evidence, the party opponent exception usually applies. A statement is not hearsay when the statement is offered against a party and is the party’s own statement, in either an individual or representative capacity. The court may also allow admission of messages to the defendant under exceptions such as state of mind, excited utterance, or present sense impression because social media often prompts candid responses to events.  Thus, while a tweet or social media post may be considered an out of court statement used to prove the truth of the matter asserted, exceptions may apply to permit the messages into evidence.

Another hurdle to overcome in the admission of social media as evidence is the requirement that the material’s prejudice not substantially outweigh its probative value. Risk of misleading the jury or causing bias exists if the court improperly permits a social media post that is irrelevant to the case. In Rice v. Reliastar Life Insurance Co., a police officer defendant shared a 1960s photo of Clint Eastwood in old west gunslinger attire with the caption, “How I feel most of the time!!!!” following a police shooting. The court found the images to be merely argumentative and prejudicial and did not add to the allegations in the complaint.

This practice was further illustrated when a New York court found that a trial court abused its discretion by admitting evidence of text messages sent by defendant on a social networking website three months after the charged crime, in which defendant bragged about an unrelated shooting involving several different types of firearms. The court concluded these messages were far too attenuated to have any probative value as to defendant’s knowledge of a firearm recovered or of his intent to use that firearm on date of crime charged, and any possible relevance was outweighed by prejudicial effect of evidence, which could have resulted in the jury convicting based solely on defendant’s presumed propensity for gun violence. Thus, a court will not allow parties to use social media postings in an effort to prove bad character.

On the contrary, courts have found that a comment and a video posted on a personal injury plaintiff’s social media page, depicting the lack of injury to plaintiff after the accident in question, is relevant to whether plaintiff was injured and to the extent and the appropriate amount of his damages. Further, while the plaintiff would object to the admission of evidence regarding his apparent exaggeration of his injuries, the admission of the social media evidence is relevant and the probative value of such social media postings, as a result, would outweigh any claim of unfair prejudice. In Missouri, videos are even considered established statements, which much be produced according to RSMo. 56.01(b)(3).

Courts also have discretion in setting the limits to relevance. In McMillen v. Hummingbird Speedway, Inc., the defendant requested the plaintiff’s password to access his entire Facebook account in order to impeach his accounts of disability following an automobile collision. The plaintiff claimed that his account was confidential. The court held, however, that there was no reasonable expectation of privacy based on Facebook’s own privacy warnings and Facebook’s own access and granted the defendant’s request for the Facebook password. “Facebook users are thus put on notice that regardless of their subjective intentions when sharing information, their communications could nonetheless be disseminated by their friends with whom they share it, or even by Facebook at its discretion.” The public portion of the plaintiff’s account contained information regarding activities that undermined his claim and was relevant.

A different conclusion was reached in Tompkins v. Detroit Metro Airport, where the court rejected the defendant’s request for access to the entire private Facebook account. The court found that the defendant’s request for the entire account was overly broad because there was nothing gleaned from the public postings that indicated any misrepresentation of the plaintiff’s claimed injuries. The court thus concluded that there must be some threshold of evidence that could be reasonably calculated to lead to the discovery of admissible evidence. The mere hope of relevance is not be enough to meet this threshold.

By analyzing the types of social media that courts have addressed, one can better prepare for the potential admission of or objection to social media, thereby increasing the likelihood of a favorable ruling. The hurdles that remain for entering social media posts into evidence include relevance, authentication, probative value, hearsay, and the best evidence rule, but social media will be increasingly introduced and admitted into evidence, whether the social media is a public posting or a private message. Attorneys should advise their clients pending the start of litigation to resist from posting on social media in order to avoid self-incrimination. Additionally, it is essential to preserve what has already been posted to avoid sanctions by the court. Social media is ubiquitous in our society, so chances are you may see it in the courtroom too. In the meantime, feel free to retweet or share this blog with your friends.

Posted by Attorney Laura Gerdes Long and Jessica A. Gottsacker. Long practices in tort, insurance defense, legal malpractice, health care, and employment law. Well-versed in employment law policies and processes related to HIPAA, she serves as a trainer and advisor to health care providers, insurers, self-insured employers, and municipalities. Gottsacker attends Saint Louis University School of Law. She is a graduate of Saint Louis University.

 


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