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May 4, 2011
It's My Space, That's Why They Call It MySpace, Take 6: Court Of Appeals Of Maryland Reverses MySpace Authentication Ruling
A defendant is charged with second degree murder, first degree assault, and use of a handgun in the commission of a felony or crime of violence. At the defendant's first trial, a witness testifies that he did not see the defendant pursue the victim into the bathroom (where he died) with a gun. The first trial ends in a mistrial, and, at a second trial, the witness changes his testimony and testifies that the defendant was the only person in the bathroom, other than the victim, when the fatal shots were fired. The witness claims that he fabricated his testimony at the first trial because the defendant's girlfriend threatened him. To corroborate this claim, the prosecution introduces into evidence a redacted printout obtained from a MySpace profile page allegedly belonging to the defendant's girlfriend, which said, in part: "JUST REMEMBER, SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" The defendant is thereafter convicted. Was that page properly admitted, and how can parties generally authenticate MySpace pages and comments as belonging to a particular person?
(Side Note: The "snitches get stitches" threat seems pretty popular, appearing in 20 cases in the Westlaw ALLSTATES database and 13 cases in the ALLFEDS database, with most of its appearances being in the last few years. I wonder whether the threat would be enough, in and of itself, to support a claim of forfeiture by wrongdoing?)
According to the Court of Special Appeals of Maryland, the answer could be found in Maryland Rule of Evidence 5-901(b)(4), which provides that evidence can be authenticated by
Circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.
Applying this rule, the court found that the prosecution properly authenticated the MySpace page as a page belonging to the appellant's girlfriend, Ms. Barber, because
The MySpace profile printout featured a photograph of Ms. Barber and appellant in an embrace. It also contained the user's birth date and identified her boyfriend as "Boozy." Ms. Barber testified and identified appellant as her boyfriend, with the nickname of "Boozy." When defense counsel challenged the State to authenticate the MySpace profile as belonging to Ms. Barber, the State proffered Sergeant Cook as an authenticating witness. He testified that he believed the profile belonged to Ms. Barber, based on the photograph of her with appellant; Ms. Barber's given birth date, which matched the date listed on the profile; and the references in the profile to "Boozy," the nickname that Ms. Barber ascribed to appellant.....
On the record before us, we have no trouble concluding that the evidence was sufficient to authenticate the MySpace profile printout. Therefore, the trial court did not err or abuse its discretion in admitting that document into evidence.
Last week, in its opinion in Griffin v. State, 2011 WL 1586683 (Md. 2011), the Court of Appeals of Maryland disagreed and reversed.
Griffin is really a terrific opinion whether or not you agree with the court's conclusion. If you want a detailed description of what courts across the country have done so far with regard to the authentication of electronically stored information on social networking sites, you need look no further than the court's opinion.
So, why did the court find that the prosecution failed to authenticate the MySpace page properly? The court agreed with the defendant
that the trial judge abused his discretion in admitting the MySpace evidence pursuant to Rule 5-901(b)(4), because the picture of Ms. Barber, coupled with her birth date and location, were not sufficient "distinctive characteristics" on a MySpace profile to authenticate its printout, given the prospect that someone other than Ms. Barber could have not only created the site, but also posted the "snitches get stitches" comment. The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that Ms. Barber was its creator and the author of the "snitches get stitches" language.
In doing so, the court "recognize[d] that other courts, called upon to consider authentication of electronically stored information on social networking sites, have suggested greater scrutiny because of the heightened possibility for manipulation by other than the true user or poster." After citing a laundry list of such cases, the court then cautioned that
we should not be heard to suggest that printouts from social networking sites should never be admitted. Possible avenues to explore to properly authenticate a profile or posting printed from a social networking site, will, in all probability, continue to develop as the efforts to evidentially utilize information from the sites increases.
So, what are the proponents of social media printouts to do in the interim? According to the court, there are at least three existing methods:
The first, and perhaps most obvious method would be to ask the purported creator if she indeed created the profile and also if she added the posting in question, i.e. "[t]estimony of a witness with knowledge that the offered evidence is what it is claimed to be." Rule 5-901(b)(1).
If the alleged creator denied creating the profile or posting the entry,
The second option may be to search the computer of the person who allegedly 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.
A third method may be to obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it. This method was apparently successfully employed to authenticate a MySpace site in People v. Clevenstine, 68 A.D.3d 1448, 891 N.Y.S.2d 511 (N.Y.App.Div. 2009).
Again, whether or not you agree with the court's opinion, you have to respect the detailed analysis that the court used to reach it. The reliability of evidence from social media sites is certainly a controversial topic, and it is one that has led some to be skeptical of whether we are being too liberal in admitting it. See, e.g., Jeffrey Bellin, Facebook, Twitter, and the Uncertain Future of Present Sense Impressions, University of Pennsylvania Law Review (forthcoming) (arguing for a corroboration requirement for electronic present sense impressions).
Meanwhile, the dissent disagreed, citing Lynn McLain for the proposition that an
item will be properly authenticated if its proponent has offered foundation evidence that the judge finds would be sufficient to support a finding by a reasonable trier of fact that the item is what it is purported to be. Md. Rule 5-901(a), consistent with prior Maryland case law, establishes that the standard of proof is the same as is found in Md. Rule 5-104(b) for facts on which the relevance of an item is conditioned. In a jury trial, the judge need not be personally satisfied, by even a preponderance of the evidence, that the proffered item is authentic; the judge must find the authentication requirement met, if a reasonable jury could find the evidence to be what its proponent claims it to be.
Applying this standard to the case before it, the dissent found that
a reasonable juror could conclude, based on the presence on the MySpace profile of (1) a picture of a person appearing to Sergeant Cook to be Ms. Barber posing with the defendant, her boyfriend; (2) a birth date matching Ms. Barber's; (3) a description of the purported creator of the MySpace profile as being a twenty-three year old from Port Deposit; and (4) references to freeing “Boozy” (a nickname for the defendant), that the redacted printed pages of the MySpace profile contained information posted by Ms. Barber.
And, according to the dissent, "The technological heebiejeebies discussed in the Majority Opinion go...not to the admissibility of the print-outs under Rule 5-901, but rather to the weight to be given the evidence by the trier of fact."
May 4, 2011 | Permalink
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The dissent got it right. The Maryland Court of Appeals essentially created a second standard for authentication that applies only to social networking pages, on the grounds that these things can be faked. But paper documents can be forged, too; there is no reason to create a new, higher standard in cases where the "document" was made with 1s and 0s instead of paper and ink.
Whether the document is faked or not has little to do with whether is has been properly authenticated for the purposes of admission. A MySpace page with the purported author's photograph and other identifying information is sufficient to allow a reasonable fact-finder to determine that the document is what is purports to be. Beyond that, it's for the finder of fact to decide whether the document is authentic or forged. This decision usurps the jury's role as the weigher of evidence.
Posted by: Lex Apostata | May 6, 2011 11:10:31 AM