Despite its relationship to new technologies, electronic evidence, including social media evidence, is actually treated the same as traditional forms of evidence in terms of admissibility. You can’t get it in without proper authentication. Here’s how it’s done with social media posts.
When authenticating social media posts, there are three questions to answer:
- What was actually on the post?
- Does the exhibit or testimony accurately reflect what appeared on the post?
- If so, is it attributable to the source that the proponent claims?
See Lorraine v Markel Am. Ins. Co. (D Md 2007) 241 FRD 534, 555; Authentication of Social Media Evidence (2013) 36 Am J Trial Advoc 433, 446.
The first two questions can be answered by authenticating a printout or download of a social media post. The final question requires authentication of the source, or author, of the post.
Authenticating a printout or download. A printout of a webpage (or a download of a podcast or video) showing a social media posting can be authenticated by a witness testifying that he or she
- printed or downloaded the post,
- recalls the appearance of the printout or download that he or she made from the social media website (or application (App)), and
- recognizes the exhibit as that printout or download.
In Ohio v Gibson (App Ohio 2015) 2015 Ohio App Lexis 1614, the detectives who created printouts of Facebook profile pages testified at trial that the printouts accurately reflected Facebook profile pages they viewed on their computer screens.
If a person who can so testify is unavailable, a witness can testify that he or she visited the social media site at issue, read the information there that is reflected in the proposed printout exhibit, remembers the contents of the social media website, and can identify the proposed printout exhibit as accurately reflecting the posting that he or she saw and remembers from the social media site. This can be done by declaration, with the proposed printout exhibit attached.
Authenticating the post’s author. There are several ways to authenticate the identity of the author of a social media post:
- Subpoena records of the affected social media company, asking for the general “subscriber report” associated with the account from which the posting was made. In addition to the subscriber report, a subpoena may seek all outgoing and incoming posts, comments, “likes,” and “shares,” including photographs, videos, and “reshares.” Also, depending on the platform, a subpoena may seek users, “friends,” “followers,” and “favorites.”
- Offer evidence of who had access to a social media account along with internal characteristics that identify the author. For example, in People v Valdez (2011) 201 CA4th 1429, 1434, printouts of a gang-related MySpace page were authenticated by the password requirement for accessing the content and by photographs and communications that identified and showed management by defendant.
- Show consistency across social media platforms. For example, counsel may show that a defendant’s “user name” on Instagram is the same or similar to his or her user name on Facebook and LinkedIn. Or, that the defendant uses the same profile picture on his or her Facebook and LinkedIn accounts.
Consider drafting a production request cast as a “Request to Produce Documents and Other Tangible Things (Computers)” to serve on a defendant (social media post author) to determine what stored information resulting from contact with social media sites is on his or her computer or mobile device. Note that a request to produce actual computers or subpoenas for electronically stored information may require computer forensic experts to determine whether a social media account existed on the computer’s hard drive or that it otherwise had electronic links to a social media site that maintained an account.
Of course, you can avoid all this work if you can get the social media account owner or user to testify to the authenticity of the printout or stipulate to it (and obtain a stipulation from opposing counsel that the printout is authentic).
Get more on introducing electronic and social media evidence in newly-added chapter 54 of CEB’s Effective Introduction of Evidence in California.
Other CEBblog™ posts you may find useful:
- A Photo Is Still a Photo, Even on Social Media
- From Website into Evidence
- How Do You Get Text Messages into Evidence: Authenticate, Authenticate, Authenticate
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