New Technology and Evidence: Issues with Admitting Social Media Evidence In Court

By: Rucha Phadtare

The increasing prevalence of social media platforms such as Facebook and Twitter has led to an increase in the use of social media as evidence in litigation. According to one law review article, discussing the use of social media evidence in sexual harassment cases specifically, publications or “posts” on social media sites by individuals are highly sought after sources of evidence because social media posts provide “easily accessible, up to date, and desirable” information.[1] Additionally, because social media sites “also record interactions with others over time,” they may help establish facts regarding the nature of the relationship between two people—for example, they may “help plaintiffs prove allegations of stalking, cyberbullying, or harassment.”[2] However, unique problems have arisen in relation to the admissibility of social media evidence in court. Due to the relative novelty of social media evidence and the lack of existing guidelines on the use and admissibility such evidence, case law on this issue thus far has been inconsistent and has failed to provide a clear approach to understanding when social media evidence can be admitted to court.

Some courts have imposed rigorous standards on the authentication and admittance of social media evidence in order to make it more difficult to admit social media evidence. Courts are reluctant to admit social media evidence due to their doubts over whether this type of evidence is authentic and reliable.[3] For example, some courts questions whether the true creator of a social media post can be reliably established.[4] This a legitimate concern in light of the reality that many social media users utilize pseudonyms to conceal their identities and protect their privacy. Interestingly, the Federal Rules of Evidence “in and of themselves do not significantly impede the admission of social media evidence” because “the applicable rules can be applied to social networking content just as they are applied to more traditional types of evidence.”[5]

The issue with admissibility of social media evidence arises because courts have a tendency to view the evidence itself as inherently unreliable and therefore impose higher standards of authentication and hearsay protection upon such evidence.[6] The court in People v. Price(2017) noted that some of the difficulties with admitting social media evidence stem from the fact that “social media is often stored on remote servers, is accessed through unique interfaces, can by dynamic and collaborative in nature and is uniquely susceptible to alternation and fabrication.”“Authentication” refers to a rule of evidence that requires evidence to be “sufficient to support a finding that the matter in question is what its proponent claims.” In other words, evidence must be proven to be genuine to be admitted in court. When it comes to social media evidence (which is generally presented at trial in the form of a screenshot) when one party denies authoring a social media post, the post must be properly authenticated in order to be entered into court as evidence.

According to Wendy Angus-Anderson in the article, Authenticity and Admissibility of Social Media Website Printouts, case law on the admissibility of social media evidence has been classified into two approaches: the Maryland Approach and the Texas Approach. Courts that follow the Maryland Approach are reluctant to admit social media evidence. These courts often find that the true author of information posted to social media is difficult to find and therefore, require that the party seeking to admit the evidence “affirmatively disprove the existence of a different creator in order for the evidence to be admissible.” For example, in Griffin v. State (2011), which concerned the admissibility of printouts from a MySpace profile, the court stated that “the potential for fabricating or tampering with electronically stored information on a social networking site” posed difficulties when considering the authenticity of the social media evidence. On the other hand, courts that follow the Texas Approach are generally more lenient towards admitting social media evidence—under the Texas Approach, “the burden of production . . . transfers to the objecting party to demonstrate that the evidence was created or manipulated by a third party.” Thus, whereas the Maryland Approach sets an unnecessarily high bar for admitting social media evidence in court, the Texas Approach relies on testing whether or not there was “sufficient evidence of authenticity for a reasonable jury to conclude that the evidence was authentic.”

Generally, the Texas approach appears to be more consistent with the intended operation and application of the Federal Rules of Evidence. Accordingly, the Texas Approach remains the more widely utilized method of determining whether or not to admit specific social media evidence. The Federal Bar Association notes that both state and federal courts across the national are increasingly adopting the Texas Standard, either in whole or in part. For example, in Parker v. State (2014), the Delaware Supreme Court reviewed both standards and then adopted the Texas Standard, referring to the trial judge as “the gatekeeper of evidence” and holding that social media evidence is admissible when the party seeking to admit the evidence provides sufficient evidence to support a finding “by a reasonable juror that the proffered evidence is what its proponent claims it to be.”

The Texas Approach demonstrates that social media evidence can be adequately authenticated and admitted into court. The skepticism as to the reliability of information acquired from social media as evidence in a motion for summary judgment or at trial appears to be often misplaced. Although social media evidence does pose problems related to identifying the true author of a post, the accessibility to direct information regarding an individual’s personal thoughts and ideas that social media provides is extremely valuable. It remains to be seen whether a uniform standard for the authentication and admittance of social media evidence will emerge in the near future.

Footnotes

[1] Laura E. Diss, Whether You “Like” It or Not: The Inclusion of Social Media Evidence in Sexual Harassment Cases and How Courts Can Effectively Control It, 54 B.C.L. Rev. 1841, 1843 (2013).

[2] Id.

[3] Megan Uncel, “Facebook is Now Friends with the Court”: Current Federal Rules and Social Media Evidence, 52 Jurimetrics 43–70, 44 (2011).

[4] Id.

[5] Id.

[6] Id.