Author: gkirsch

As social media has become more and more prevalent, courts have been faced with the difficult task of determining the evidentiary standard to be applied to social media.  According to the Bloomberg Social Media Law & Policy Report,[1] courts have generally articulated two different approaches to the authentication of evidence in the form of social media.  Some courts have adopted a standard that allows “a reasonable inference as to the source of the postings [to be] based on their contents, such as statements in the creator’s profile, photographs or references to facts about the creator.”[2]  Other courts require “something more, such as the testimony of the creator, documentation of the internet history or hard drive of the purported creator’s computer or information obtained directly from the social networking site.”[3]

The Delaware Supreme Court, in Parker v. State,[4] recently adopted the less stringent evidentiary standard when it comes to social media evidence, concluding that “social media evidence should be subject to the same authentication requirements under the Delaware rules of Evidence Rule 901(b) as any other evidence.”  While acknowledging the ease with which social media evidence could be fraudulently created, the Delaware Supreme Court believes the issue of authenticity is one to be decided by the jury.  Conversely, the court in Griffin v. State[5] rejected the prosecution’s argument that a person’s photograph and birth date are sufficient to authenticate a Facebook page for evidentiary purposes.  The Maryland court emphasized how easily a person can access another’s Facebook page and that a person only needs an email address to create a fraudulent page. [6]

According to the Federal Rules of Evidence Rule 901, “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent much produce evidence sufficient to support a finding that the item is what the proponent claims it is.”[7]  It seems that the Federal Rules of Evidence can be effectively applied to social media, as “evidence sufficient to support a finding” leaves much to be decided by the judge hearing each individual case.   However, giving each judge so much discretion on a case-by-case basis can lead to inconsistent findings based on jurisdiction and, consequently, forum shopping.

In such a progressive world, we must ask whether evidentiary rules can be effectively applied to social media.  Do people abuse and falsify social media so often that rules of evidence should account for that?  Could the more stringent evidentiary standard, which may require an examination of a person’s hard drive or search history, lead to an invasion of a litigant’s privacy?  In a world where the Internet connects people regardless of geography or jurisdiction, is it not crucial that the rules of evidence be applied equally throughout the country?  Hopefully we will learn the answers to these questions in the near future.