Journal of American Law

SPRING 2015

The Journal of American Law is a peer-reviewed journal and the only one of its kind in the country. The Journal is a law review focused on important legal issues ranging from complex litigation to Supreme Court rulings.

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8 Journal of American Law // Spring 2015 v. O'Keefe, 20 the court stated that a "piece of paper or electron- ically stored information, without any indication of its creator, source, or custodian, may not be authenticated under Federal Rules of Evidence 901." Te authentication of social media in- volves asking how the evidence was collected, where the ev- idence was collected, what types of evidence were collected, who handled the evidence before it was collected, and when the evidence was collected. Te most direct way to authenticate social media evi- dence is to present it to the witness, obtain an admission that he created and posted the content, and confrm a lack of pri- vacy settings. Circumstantial evidence can be used as a foun- dation for authenticity obtained through other sources that have credible knowledge of a particular witness creating and posting content. 21 Under either scenario, a strategic consid- eration includes an evaluation of how an early attempt to au- thentic this evidence will afect the surprise value of using the evidence for impeachment purposes later. In Lorraine v. Markel American Ins. Co., 22 the court de- nied motions to compel based on the admissibility of elec- tronically stored evidence. In its 101-page opinion, the denied motions for summary judgment were fled by both parties under Federal Rules of Civil Procedure 56. Te court noted that none of the exhibits were authenticated, no attempt was made to resolve hearsay issues, the original writing rule was not complied with, and the absence of unfair prejudice was not demonstrated. Social media evidence is ofen met with a sense of judi- cial skepticism about reliability. If the user does not provide testimony authenticating the social media evidence, authen- tication can be challenging and puts at issue evidence collec- tion and preservation. Tis may require the use of witnesses with personal knowledge of how content is typically gener- ated, maintained, and preserved. Circumstantial evidence in- cludes dates, the presence of an identifying Web address on a printout, a declaration of how and when it was obtained, and knowledge of its contents. Standards for admissibility may vary based on jurisdic- tion and courts. In Grifn v. State of Maryland, 23 in perform- ing its evidence gate-keeping function, the court held evidence not admissible due to improper authentication as there were insufcient "distinctive characteristics" on a MySpace profle to authenticate its printout. In Grifn, the state sought to in- troduce a MySpace post of the defendant's girlfriend. To prove that the post was written by the girlfriend, the state sought to authenticate the evidence using the picture, birthdate, and location shown on her MySpace profle, but it failed to authen- ticate the page on the witness stand or introduce electronic records about who had authored the post. Te court held that the admitting party should (1) ask the purported creator if she 20 United States v. O'Keefe 537 F. Supp. 2d 14, 20 (D.D.C. 2008). 21 Admission that the content is genuine. See Fed. R. Evid. 901(b)(1). 22 Lorraine v. Markel American Ins. Co. 2007 U.S. Dist. LEXIS 33020 (D. Md. May 4, 2007). 23 Grifn v. State of Maryland 419 Md. 343, 19 A3d 415 (2011). created the profle and the post, (2) search the Internet history and hard drive of the purported creator's computer "to deter- mine whether that computer was used to originate the social networking profle and posting in question," or (3) obtain in- formation directly from the social networking site to establish the appropriate creator and link the posting in question to the person who initiated it. In Tienda v. State 24 from the Court of Criminal Appeals of Texas, the state introduced into evidence the names and ac- count information associated with three MySpace profles that indicated the defendant's knowledge of a murder. On appeal, the defendant argued that the state did not authenticate prop- erly the MySpace profle or posts to attribute them to the de- fendant. Te court explained that the best or most appropriate method for authenticating electronic evidence will ofen de- pend upon the nature of the evidence and the circumstances of the particular case. Tis could include (1) direct testimony from a witness with personal knowledge, (2) comparison with other authenticated evidence, or (3) circumstantial evidence. In Tifany Parker v. State of Delaware, 25 the court analyzed the Maryland approach in Grifn and the Texas approach in Tienda and ultimately followed Grifn, which efectively al- lows the judge to be the gatekeeper of the evidence. Te plain- tif argued that the court erred in admitting statements posted on her Facebook profle and that the court should have ad- opted the Maryland court's approach versus the Texas court's approach to authenticating social media evidence. Texas has a hurdle lower than Maryland because it allows the jury to resolve issues of fact and a jury could reasonably fnd that the profered evidence is authentic. It was noted in the Parker decision that New York and Arizona followed the Texas ap- proach in Tienda. An illustration of applying the hearsay rule is demon- strated in the People v. Oyerinde 26 case. Here, the defendant's Facebook messages were not hearsay but rather a party ad- mission because he sent them to another person. Just because the evidence was available on social media does not mean the test for a party admission changed. Te rule states that "[a] statement is not hearsay if…[t]he statement is ofered against a party and is the party's own statement, in either an individ- ual or representative capacity." Te judge applied the test as it would be applied to any other out-of-court statement. A recent case, United States v. Vayner, illustrates the im- portance of the need for establishing a proper foundation when attempting to introduce social media evidence into tri- al. In Vayner, the government utilized an agent to ofer into evidence a printed copy of a Web page that it claimed was defendant Aliaksandr Zhyltsou's profle page from a Russian social networking site similar to Facebook. Te district court admitted the printout over Zhyltsou's objection that the page had not been properly authenticated and was, thus, inadmis- sible under the Federal Rules of Evidence Rule 901. Federal 24 Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012). 25 Tifany Parker v. State of Delaware, 85 A.3d 682 (Del. 2014). 26 People v. Oyerinde, 2011 Mich. App. LEXIS 2104 (Mich. Ct. App. Nov. 29, 201.

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