By: Kimberly H. Neal
Social media “evidence” of crimes or civil actions has been a hot topic of late, forcing new interpretation of existing laws and, often, necessitating the creation new laws. Posts on social networking sites such as Facebook, Twitter, and Instagram are being used to brag about activities and publicize someone’s whereabouts. But can the post be used as evidence in a court of law? How can the post be properly authenticated so as to be deemed admissible? And, if admitted, what legal considerations must guide the trier of fact’s interpretation of the impact and relevance of social media evidence?
Maryland’s Stance on Authentication
Maryland’s high court recently examined the use of social media evidence in three consolidated criminal appeals: Albert Sublet IV v. State of Maryland, No. 42, Tavares D. Harris v. State of Maryland, No. 59, Carlos Alberto Monge-Martinez v. State of Maryland, No. 60 (as to all, Sept. Term, 2014, Opinion by Battaglia, J.) The court relied upon its prior ruling in Griffin v. State, 419 Md. 313 (2011), which also considered authentication of information obtained from social media websites.
Importantly, in Griffin, the high court acknowledged that “anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password”. Id. at 352, 19 A.3d at 421. This led to an examination of Maryland Rule 5-901(b)(1) and (4) and the identification of three non-exclusive means of authentication of ownership when information is obtained from a social media websites:
(1) to ask the purported creator if she indeed created the profile and also if she added the posting in question
(2) search the computer of the person who allegedly created the profile and posting and examine the computer’s internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.
(3) obtain information directly from the social networking website, which would link together the profile and the entry to the person, or persons, who had created them.
Id. at 364, 19 A.3d at 427-428.” (Footnotes omitted.)
These considerations were applied in Sublet, Harris, and Monge-Martinez as follows:
Albert Sublet was indicted for assault, reckless endangerment, and carrying a deadly weapon with intent to injure his girlfriend. During cross-examination of the girlfriend, Sublet’s attorney sought to introduce four pages allegedly printed from her Facebook page involving a “conversation” among seven individuals relating to the incident. Although Ms. Parker substantiated comments on the first three pages of the printout, she denied making the comments on the fourth page and admitted to giving her “logout” name and password to others. Accordingly, the trial court refused to authenticate the Facebook material.
In Harris, the appellant was charged and convicted with a number of offenses arising out of an allegedly retaliatory shooting. “Direct messages” and public “tweets” sent via Twitter discussed the planned retaliation. The State sought to introduce the tweets and messages into evidence, and Harris’ counsel objected. The State proffered that Detective Jesse Grimes would testify that, through the use of special software, he had retrieved the “direct messages” and public “tweets” that would establish Harris’ retaliatory motive for the shooting. The trial court ruled that the public tweets were properly authenticated along the lines of the Griffin decision because there was evidence that they were authored by Harris. The direct messages were also authenticated, because they were authored under the same Twitter account and same timeframe as the public tweets.
In the third appeal, Carlos Alberto Monge-Martinez was convicted of offenses arising out of an altercation with a former girlfriend. The state claimed Monge-Martinez had intentionally instigated the fight, while he claimed he was defending himself from the ex-girlfriend. The state sought to introduce Facebook messages received by the “ex” that had allegedly been sent by Monge-Martinez to express remorse for his actions. Screen shots taken from the girlfriend’s cell phone were authenticated by (a) witness testimony stating that she had received Facebook messages from Monge-Martinez, and (b) time logs reflecting that the three messages were sent within 15 minutes of each other. Ultimately, the screen shots were admitted into evidence over objection.
While Sublet deals with authentication of public social media posts, generally, the other two appeals questioned whether direct social media messages (i.e.- not public) would fall under the Griffin authentication standard or a different standard that would apply to communication via email, text, or instant messages. As the Griffin court stated, “e-mails and other directed communications, for example, may present a greater opportunity for authentication by circumstantial evidence. See Griffin, 419 Md. at 361 n.13, 19 A.3d at 426 n.13 (citing numerous cases).
The court, relying on Griffin, as well as United States v. Vayner, 769 F.3d 125 (2014), where the Second Circuit reached a similar conclusion as to authentication, concluded that both direct and circumstantial evidence may be used to authenticate social media communications. Those communications may include public postings as well as direct messages to another person. However, if a witness denies all or part of a multi-page posting (or fails to identify it) the entire communication may not be deemed authentic and therefore inadmissible. Thus, the standard for authentication of social media communications remains low based on the “reasonable juror” standard of Vayner adopted by the Maryland Court of Appeals.
The Supreme Court’s Analysis of Facebook Threats as Evidence
Even more recently, on June 1, 2015, the Supreme Court of the United States reversed a criminal conviction that was based on evidence that a man made threats on Facebook. In Elonis v. United States, 575 U.S. ___ (2015), the Supreme Court determined that the person making the Facebook threat must have some level of criminal intent – even if the statute allegedly violated does not specify any required mental state. Thus, while the statute merely required “proof that a communication was transmitted and that it contained a threat,” the Court overturned the conviction because it “was premised solely on how [the] posts would be understood by a reasonable person” – a negligence standard that should be reluctantly inferred in criminal statutes.
But the Supreme Court stopped short of addressing what level of criminal intent should be required; it did not consider whether recklessness would suffice. It also did not address any First Amendment implications. For these reasons, Justice Alito concurred in part and dissented in part, noting that (1) lower courts would need to know a standard to apply and that (2) the First Amendment would not protect true threats. In Justice Alito’s view, a jury should be instructed to consider whether the author of a Facebook threat was reckless in his post. He also asserts that the jury should consider the context of the communication; “lyrics in a song that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person” whereas social media communications “that are pointedly directed at their victims… are much more likely to be taken seriously.”
In conclusion, the prevalence of social media over the last decade has led to new evidentiary considerations. Thus far, courts are still determining proper means of authentication, as well as instructions to guide the trier of fact in assessing the weight of evidence deemed admissible. Maryland will permit direct and circumstantial evidence to authenticate social media communications, but sets a high bar for authenticity that may not be achieved if a witness denies having made the posting. Meanwhile, if the evidence is deemed admissible and can be considered a criminal threat, the Supreme Court will require proof of the maker’s mental state in order for a conviction. It has been left to the lower courts to determine the level of mens rea required to support a conviction.
 Court of Appeals case number 42 involved an appeal from the Circuit Court for Anne Arundel County, Maryland Criminal No. K-2012-002287. Number 59 was an appeal from the Circuit Court for Montgomery County, Maryland Criminal No. 121279. And number 60 was appealed from the Circuit Court for Prince George’s County, Maryland Case No. CT12-0824X.
As consolidated cases, all were argued in the Court of Appeals on February 6, 2015. The court’s opinion was filed on April 23, 2015.