Admissibility of Social Media Evidence at Trial

It is becoming more common to see information taken from social media websites used in personal injury actions. An example of this is the B.C. case of Bagasbas v. Atwal, 2009 BCSC 512. In this case, photos taken from the plaintiff’s facebook page were used to contradict evidence regarding the extent of injuries sustained in a car accident.

The use of evidence taken from social media at trial raises certain legal issues concerning its admissibility. In general, evidence needs to be authenticated in order to be admissible in a court of law. The party putting forward the evidence must show that the evidence is what the party claims it to be. The purpose of authentication is to filter unworthy evidence.

A decision from the Maryland Court of Appeals recently addressed the issue of how to authenticate evidence obtained from social media sites. In Griffen v. State the legal issue was whether the State had properly authenticated a “MySpace” profile and comment. The accused, Mr. Griffen, was charged with the shooting death of a patron at a bar in 2005. At trial the State attempted to introduce the profile of the accused’s girlfriend to show that, prior to the trial, she had threatened a witness called by the State by posting the following comment: “FREE BOOZY!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”

The State did not call the girlfriend at trial to authenticate the evidence. Instead it called the lead police investigator in the case who authenticated the profile and comment based on the picture of the girlfriend contained in the profile coupled with her birth date and location. The Court held that this was not enough to ensure the evidence was authentic.

In its decision the Court was concerned with the problem of fake online profiles:

The identity of who generated the profile may be confounding, because “a person observing the online profile of a user with whom the observer is unacquainted has no idea whether the profile is legitimate.” Petrashek, 93 Marq. L. Rev. at 1499 n.16. The concern arises because 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.

To avoid the problem of masquerading, the Court suggested various approaches for the proper authentication of social media evidence, including: eliciting testimony from the person alleged to have created the data at issue; searching the hard drive of the computer of the person alleged to have created the data at issue or obtaining information from the social media platform where the comment was posted.

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