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What You Tweet May Be Used Against You!

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In a 2010 prosecution of Antoine “Boozy” Griffin for murder in Maryland, the Government wanted to introduce into evidence a printout of Boozy’s girlfriend’s MySpace page. On this page, the girlfriend was trying to intimidate a witness, by saying “Free Boozy!!!! Just remember snitches get stitches!! You know who you are!!”

The trial court admitted the printout into evidence, and Griffin was convicted of murder. However, on appeal, the court reversed the decision, stating that the MySpace printout wasn’t properly authenticated, and therefore it should not have been admitted into evidence.

The law mandates that every document must be authenticated before it is admitted into evidence, and may be used by the jury to reach a verdict. According to the Federal Rules of Evidence, to “satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” The proponent is the party seeking to enter the item into evidence.

The process of authentication is more than a formality, it is a crucial step without which an item will not be allowed into evidence, and hence may not be considered in the case. The proponent may authenticate an item through testimony from a witness familiar with the item. For example, to authenticate a photograph of an intersection (let’s say to prove the existence of a stop sign), a witness needs to look at the photograph and testify that she has driven through that intersection at least once, and that the photograph accurately shows what the intersection looks like.

Recently, the courts have struggled with articulating a clear standard for authenticating evidence from social media. This is because social media content, more so than other types of evidence, can be easily fabricated. Someone other than the account owner may create a post under the owner’s name, or maybe the entire account was created to impersonate someone else. The court in Griffin noted that “with relative ease… anyone can create fictional personas or gain unauthorized access to another user’s profile.”

To guard against the introduction of fraudulent postings in a court proceeding, the Maryland Court of Appeals reviewed three separate cases: Sublet, Harris, and Monge-Martinez, and issued one opinion about them. In this opinion, the court recommended three ways to authenticate posts from social media:

  1. “The first and most obvious method for authentication… would be to ask the purported creator if she indeed created the profile and also if she added the posting in question.”
  2. “The second approach… [is] to search the computer of the person who allegeldy created the profile and posting and examine the computer’s internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.”
  3. “The third of the non-exhaustive means of authentication… [is] to obtain information directly from the social networking website, which would link together the profile and the entry to the person, or persons, who had created them.”

These methods appear simple, but in practice they can be difficult to execute. As we discussed in our article on the Stored Communications Act, unless you are a government agent or you are the owner of the social media account, it is extremely difficult to obtain information directly from a social networking website.

Asking the purported creator if she indeed created the profile and made the postings in question is the most direct method, but it runs the risk of people simply refusing to admit to the incriminating content. This is exactly what happened in Sublet. When confronted with a series of posts comprising a conversation on her public timeline on Facebook, the witness agreed that she created the Facebook profile, and that she was the one who made all the posts that appeared with her name, except the ones that were incriminating. Those, she claimed, were made by someone else using her account. “The trial judge, thereafter, sustained the… objection to admission of [the timeline conversation] based upon three findings: that [witness’] password was not a secret, that other people could and had presumably accessed and changed or inserted information on [her] Facebook page, thereby attributing it to her, and that [the witness’] explanation was not disputed by expert testimony.”

Thus, even though the court acknowledged that “[i]t is common for witnesses faced with an incriminating statement on their social media profile to claim that it must have been written by someone else, which they claim is possible because other people know their social media password or use their computer,” it appears that absent additional evidence, the witness’ denial will be sufficient to have the evidence thrown out.

It seems that the best option for authenticating social media content is through expert testimony after an examination of computers, cell phones, and other devices from which the posting in question may have been made.

However, there are other ways to authenticate social media content. For example in Harris, the Government used testimony of the witness who had the private conversation with the defendant to authenticate the tweets in questions: the witness testified that the screen name of the declarant making the private tweets belonged to the defendant. To authenticate public tweets, the court found it sufficient that they were made under the same screen name and at nearly the same time as the private ones.

The court concluded that the legal standard for authenticating social media content in Maryland is for “the trial judge to determine… [whether] there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be.” This standard is subjective, and whether your tweet will be used against you will depend as much on corroborating evidence as it will on the inclinations of the presiding judge.

By Maya Kushner, Esq. and Marc Emden, Esq.

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