EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, July 29, 2021

Eighth Circuit Finds Prosecution Properly Authenticated Facebook Messages

Federal Rule of Evidence 901(b)(4) provides that

The following are examples only — not a complete list — of evidence that satisfies the requirement:...

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

So, what does it take to authenticate Facebook messages under Rule 901(b)(4)? That was the question addressed by the Eighth Circuit in its opinion today in United States v. Lamm, 2021 WL 3196472 (8th Cir. 2021).

In Lamm, Kevin Lamm was charged with one count of distribution of child pornography, one count of production of child pornography, and one count of possession of child pornography. After he was convicted, Lamm appealed, claiming that the prosecution failed to properly authenticate Facebook messages that allegedly came from his account. 

The Eighth Circuit rejected his appeal, citing precedent from the Third and Seventh Circuit, allowing authentication of Facebook messages through circumstantial evidence under Federal Rule of Evidence 901(b)(4). The Eighth Circuit then ruled as follows:

We agree with the Third and Seventh Circuits: the Government may authenticate social media evidence with circumstantial evidence linking the defendant to the social media account. The Government did that here. First, the Government linked the same cell phone number-in Kevin Lamm's name-to both accounts. Second, the same images that appeared on Lamm's Facebook account appeared on the Malone account....Third, Lamm had copies of those images on memory cards in his apartment. Fourth, those same memory cards also contained screenshots of private messages only the Malone account could access. Fifth, other online subscriptions found on Lamm's computer used an email address containing the name Mike Malone. Taken together, this evidence provided a rational basis for the district court to pass the question of authentication to the jury.



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