Flotillas of articles discuss authenticating social media. This abundance is a bit surprising. Authentication is a lower bar than other evidentiary hurdles. As the court in State v. Eleck (a leading social media authentication case) wrote:
Both courts and commentators have noted that the showing of authenticity is not on a par with the more technical evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege. State v. Eleck, 23 A.3d 818, 821 (Conn. App. Ct. 2011) quoting State v. Garcia, 7 A.3d 355 (2010).
A recent criminal case offers some guidance on a “more technical” rule of evidence —hearsay.
Smith v. State (Miss. Ct. of Appeals No. 2012-KA-00218-COA, June 4, 2013) was a capital murder case involving the death of a 17-month-old child named Ally. On appeal, the defendant, Scott Smith, argued that the trial court erred in admitting copies of Facebook communications between the defendant and the victim’s mother, Jenny Waldrop. The defendant claimed the documents were not authenticated and were hearsay. The appellate court rejected these arguments as well as a Confrontation Clause challenge.
At trial, the prosecution sought to admit two types of communications: (1) copies of two Facebook messages between Waldrop and Smith (a “message” is a private note between Facebook members generally accessed by signing in to one’s Facebook account) and (2) a copy of an email automatically generated and sent (presumably as a result of settings selected by Waldrop) by Facebook to Waldrop’s email account. The email contained the text of a Facebook message from Smith to Waldrop. She testified regarding authorship of the two messages printed directly from Facebook and the message contained in the email.
The messages and the email are excerpted below. They give a sense of the back-and-forth flow and demonstrate the unique nature of social media evidence — it readily memorializes very personal experiences. Blank spaces appear below. Apparently, the information at issue was copied and the copier cut off a portion of the messages near the right margin.
Messages printed from Facebook:
Scott Smith: I’m so tired of fighting about the same damn thing day in and day out ___ moments of the day…[I] really just can’t take anymore of this.
Jenny Waldrop: Maybe if you took some of all that love you been giving to you mom an ___ some to me. [L]ife would be simple. I told you [I’]m tired of fighting and be ___ blamed for Ally. I want to be happy dammit I deserve that cause [I’]m not ___ about Ally crying for no reason.
Email containing a Facebook message:
Scott Smith:[I] feel my temper building and [I] know [I] will hurt someone, they are playing with fire and have no clue. [I]’m way over the screaming and crying…[I]’m going to have a happy family and nothing nor no one will stand in the way of that.
Messages and email were authentic
The appellate court held that the trial court had not committed error in admitting the messages and email over objections regarding authentication. Waldrop testified that the messages printed from Facebook and the message in the email were authored by her and Smith. The appellate court found this testimony sufficient to authenticate. As this decision only briefly discusses the facts required to authenticate in this matter, practitioners may wish to review other cases and articles discussing authentication for further guidance.
Automated communications are not hearsay
The defendant also objected that the two messages were hearsay. The defendant further objected that the email was “double hearsay” (aka hearsay within hearsay). To wit, the email notification was hearsay and the message therein was also hearsay.
The appellate court addressed the email first. “Hearsay,” it said, is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” Mississippi Rule of Evidence (MRE) 801(c). A “statement” is defined as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion,” MRE 801(a).
Applying these principles, the court held that the automatic email notification from Facebook was not hearsay because a statement must be an assertion and it must be made by a human. Here, the generation and sending of the email was merely an automated process using Facebook’s systems — not a human making an assertion, see also State v. Kandutsch, 799 N.W.2d 865, 878-879 (Wis. Sup. Ct. 2011)(holding that automatically-generated computer records were not hearsay, but identifying a somewhat competing view that considers computer “reports” hearsay and has been adopted by the majority of federal courts when interpreting the Federal Rules of Evidence).
Holding that communications delivered via automated computer processes are not hearsay may have broad implications. Many social media companies seek to be a repository of all user communications (Facebook advertises “Texts, chat and email together in one simple conversation”). Automated processes are used to forward and centralize information.
In light of Smith’s focus on automation, litigants may need to inquire about account settings and automatic connections between multiple services/accounts as part of their investigations or discovery. Unfortunately, settings may be de-centralized. Potentially relevant settings might be found in a social media account, on a phone or tablet or in a software “app”.
Social media statements as admissions by a party opponent
The Smith court then turned to whether all three messages (the two messages printed directly from Facebook and the third message contained in the email) were hearsay. The court held that Smith’s statements were admissions by a party opponent and thus not hearsay, MRE 801(d)(2)(A), see also Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 568 (D. Md. 2007)(“Given the near universal use of electronic means of communication, it is not surprising that statements contained in electronically made or stored evidence often have been found to qualify as admissions by a party opponent if offered against that party.”) The state did not offer a hearsay exception for the admission of Waldrop’s message, but the court held its admission harmless error.
Present sense impression, excited utterances and text messages
The Nevada Supreme Court has applied hearsay doctrines to text messages. In Funches v. State, 2012 WL 436635 (Nev. Sup. Ct. 2012)(unpublished), the court held that text messages written one to two hours after an event and after the witness slept, were not admissible under the present-sense-impression hearsay exception, but were admissible under the excited utterance exception because the witness’ testimony indicated that she was under the extreme stress of seeing gory activities related to the alleged crime.
Building upon Funches, the omnipresence of smart phones suggests that these exceptions will be raised more frequently. As the Lorraine court noted: “The prevalence of electronic communication devices, and the fact that many are portable and small, means that people always seem to have their laptops, PDA’s [sic], and cell phones with them, and available for use to send e-mails or text messages describing events as they are happening,” Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 569 (D. Md. 2007).
1. Authentication is just one evidentiary consideration for using social media evidence. When analyzing admissibility consider other elements.
2. Prepare early. Consider using discovery tools, such as a request for admissions, to secure necessary facts.
3. The settings of an account, device or app may be relevant to evidentiary issues. Ask about message forwarding or apps used to manage social media.
4. The ubiquity of smart phones is conducive to witnesses making statements that are subject to hearsay exceptions such as admissions, present-sense-impression, excited utterances, etc.
5. Social media records are a superb resource to capture a witness’ thoughts in his or her own words
Halloween is coming. Don’t be tricked by social media hearsay issues.
Scott Malouf is an attorney who helps other attorneys use social media, text and Web-based evidence. You can learn more about him at his website (www.scottmalouf.com) and follow him on Twitter at @ScottMalouf. Although he is a good cook, he has been accused of “over herbing.”