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Univ. of South Carolina School of Law

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Tuesday, February 18, 2014

Facebook Status: Authenticated -- Supreme Court of Delaware Finds Facebook Messages Were Properly Authenticated

I've written before about  Griffin v. State, 2011 WL 1586683 (Md. 2011), in which the Court of Appeals of Maryland found that a MySpace profile printout wasn't properly authenticated because "someone other than Ms. Barber could have not only created the site, but also posted the 'snitches get stitches....'" Did the Supreme Court of Delaware reach a similar conclusion with regard to Facebook evidence in Parker v. State?

In Parker, Tiffany Parker was charged with second degree assault and Terroristic Threatening. According to the evidence presented at trial,

Tiffany Parker and Sheniya Brown were engaged in a physical altercation....The disagreement was over Facebook messages regarding a mutual love interest. Felicia Johnson was driving by when she observed the confrontation and later testified that Parker appeared to be “getting the best of the pregnant girl [Brown].” Bystanders eventually separated the two, but the fight resumed when Brown returned with a knife. Bystanders again intervened, and shortly thereafter officers from the Wilmington Police Department separated the women.

At trial,

The State sought to introduce Facebook entries that were allegedly authored by Parker after the altercation to demonstrate her role in the incident and discredit Parker’s self-defense argument. The Facebook entries originated from Parker’s Facebook account and stated:

bet tht [sic] bitch didnt [sic] think [I] was going to see her ass...bet she wont [sic] inbox me no more, #caughtthatbitch....

[ctfu]..this girl is crazy..she really got these ppl [sic] thinkin [sic] that [I] was on some nut shit...first of all she hit me first...if you really want to put it out there since you shared i...See more

...[I] told you go head [sic] and you inboxed [sic] me back still being disrespectful...[I] told you say no more [sic]...[I] seen [sic] you today...we said our words you put your hands on me...[I] hit you back ..WE [sic]... See more.

The State's exhibit depicting Parker’s Facebook posts included her picture, the name "Tiffanni Parker," and a time stamp for each entry. Eventually, the State used testimony from Brown, as well as circumstantial evidence, to authenticate the Facebook entries

After Parker was convicted of second degree assault, she appealed, claiming that the Facebook entries were not properly authenticated. Parker cited to Griffin and noted that the court there found that distinguishing characteristics like the one in her case were insufficient to authenticate a MySpace page under Maryland's version of Federal Rule of Evidence 901(b)(4), which allows for authentication via

The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

Instead, the Maryland court found that, to properly authenticate similar social media posts, "the admitting party should either (1) ask the purported creator if she created the profile and the post, (2) search the internet history and hard drive of the purported creator’s computer 'to determine whether that computer was used to originate the social networking profile and posting in question,' or (3) obtain information directly from the social networking site to establish the appropriate creator and link the posting in question to the person who initiated it." And, indeed, the Parker court noted that "[s]everal courts have followed the reasoning of Griffin out of the concern that social media evidence could be a fake, a digital alteration of an alleged creator’s profile, or a posting by another using the alleged creator’s profile."

On the other hand, the State cited to Tienda v. State, in which the Court of Criminal Appeals of Texas held that a "combination of facts—including photos, contextual references to the defendant’s life, and the posts about his ankle monitor—was circumstantial evidence 'sufficient to support a finding by a rational jury that the MySpace pages that the State offered into evidence were created by the [defendant].'"

The Parker court ultimately concluded that social media evidence was no different from any other evidence and that it was thus subject to the same authentication test as any other exhibit. Applying this test, the court concluded that the Facebook messages were properly authenticated for the following reasons:

First, the substance of the Facebook post referenced the altercation that occurred between Parker and Brown. Although the post does not mention Brown by name, it was created on the same day after the altercation and referenced a fight with another woman. Second, Brown’s testimony provided further authenticating evidence. Brown testified that she viewed Parker’s post through a mutual friend. Thereafter, Brown “shared” the post and published it on her own Facebook page. Collectively, this evidence was sufficient for the trial court to find that a reasonable juror could determine that the proffered evidence was authentic.

-CM

http://lawprofessors.typepad.com/evidenceprof/2014/02/ive-written-before-about-griffin-v-state-2011-wl-1586683-md-2011-in-which-the-court-of-appeals-of-maryland-found-that-a.html

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