Introduction

Social networks are more than tools to make “friends” and find “connections.” They provide business and government with an investigative source that is readily available and easily accessible. Indeed, both private industry and government alike are utilizing social media as a source to build or break a case.^[1] Widespread use of social media and the variation in site protocols create concern regarding the reliability of evidence.^[2] This, together with added issues like inaccurate postings, phantom profiles^[3] and imposter accounts, renders social media evidence controversial in the courtroom. For lawyers and investigators alike, social media must be carefully mined and cautiously used. Understanding the manner in which social media is collected and the methods by which it can be admitted at trial are vital skills for any litigator.^[4]

Collecting Social Media

Because of its widespread use and accessibility, social media provides an attractive portal of information for investigators, attorneys and even judges. Government entities have successfully obtained evidence from social media sites to establish motives, to verify alibis, and to prove a crime or criminal enterprise. From targeting Facebook photos and viewing YouTube videos, social media sites have provided law enforcement with access to incriminating evidence without leaving their desks.^[5] In fact, the U.S. Department of Justice prepared an internal presentation entitled Obtaining and Using Evidence from Social Networking Sites,^[6] describing techniques for uncovering information from these sites.^[7] A recent survey of over 1,200 federal, state and local law enforcement professionals confirms that social media is a widely accepted and frequently used resource for investigating crimes.^[8]

Attorneys may seek to utilize social media to prove claimsor defenses, or to provide impeachment evidence, but some state bar associations impose ethical boundaries on procuring such information. The New York State Bar Association limits attorneys to public information of an adverse party’s social networking site.^[9] The Pennsylvania and California bars also impose similar restrictions, and there is currently a case pending before the New Jersey Office of Attorney Ethics against two attorneys for allegedly misusing Facebook.^[10] Imposing ethical restrictions on attorneys curtails the discovery and admission of social media evidence, but it also staves off potential improprieties.

With the stroke of a key and the click of a mouse, the judiciary has access to the same social media information. In the case of Purvis v. Comm'r of Soc. Sec., a disability matter was remanded, but in so doing, the court noted that “in the course of its own research, it discovered one profile picture on what i[t] believed to be Plaintiff’s Facebook page where she appear[ed] to be smoking…,” and “[i]f accurately depicted, Plaintiff’s credibility is justifiably suspect.”^[11] Litigators must remain mindful that even if such harmful information is not highlighted by an adversary, the court can still learn of such information independently.

Authenticating Social Media

Social media has peculiar characteristics that render authentication more challenging than other forms of evidence. The proponent of such evidence bears the burden of establishing that an item is what it purports to be and originates from the proposed source. It is at this point – the nexus between the post and author – that authentication may become troublesome because such evidence could be derived from: 1) a false/parody account (meaning that the profile holder is not who the account represents); or 2) a false post on a legitimate account (meaning the poster of the material is not the account holder). Social media sites do not prohibit parody or phantom accounts.^[12] As such, care should be exercised to ensure that information is authentic.

Because of the potential for fabrication and impersonation, skepticism surrounds the admission of social media evidence at trial.^[13] As a result, although social media sites present an abundance of information in the form of photos, posts, friend lists, tags, messages, tweets and videos, using it at trial requires an understanding of the applicable rules of evidence and the evidential issues surrounding social media.

Authentication of electronic and hard copy documents is governed by the Federal Rules of Evidence (“FRE”) 901(a), 104 and analogous state rules.^[14] To date, however, neither the FRE nor applicable state rules specifically address social media as a unique form of electronic evidence.^[15]

The limited case law addressing authentication of social media evidence highlights the somewhat subjective analysis of circumstantial evidence relating to the allegedly distinctive characteristics of the communication being offered.^[16] Where direct testimony of a witness with knowledge is unavailable, authenticity may be established through circumstantial evidence, such as “the testimony of a witness with knowledge that a matter is what it is claimed to be,”^[17] but care must be taken to establish sufficient circumstantial evidence to reasonably attest to the authenticity of the social media evidence being proffered.^[18] Circumstantial proofs that can help create a nexus between the user’s profile and the post are photographs, date of birth, location, nicknames, language distinctive to the user and distinguishable content. Such proofs, however, should still be corroborated with direct testimony and, if possible, with evidence directly from the social media site.^[19] Another alternative is obtaining testimony of a forensic computer expert who, after examining the user’s computer, can testify that the post being proffered was retrieved from the hard drive of the account holder. The weight of this type of cumulative circumstantial evidence may provide a court with the confidence necessary to find that the social media evidence being offered is what it purports to be and that it originates from the source identified by the proponent.

Other Evidential Issues – Relevancy, Hearsay And Best Evidence

Once authenticated, the proponent must overcome other possible objections such as relevancy, hearsay and best evidence. The threshold requirements of relevancy under FRE 401 are satisfied when the evidence has sufficient probative value to warrant admission. Overcoming hearsay objections requires more effort. Hearsay is defined as an out-of-court statement that is offered for its truth.^[20] Hearsay rules are applied to ensure that the trier of fact can evaluate the credibility of the declarant when the declarant’s purported words are offered for their truth.^[21] By its very nature, electronic evidence is riddled with hearsay issues.^[22] Social media evidence is admissible, however, when a hearsay exception applies or when the evidence is not offered for its truth.^[23] As a practical matter, social media evidence is often not utilized to prove the truth of the words but to establish state of mind, impeachment or inconsistencies.^[24] Status updates, posts and tweets may be particularly useful for such purposes. Moreover, where the statement is offered as an admission or adoptive admission, the hearsay objection is overcome. For instance, a statement made by a party’s corporate officer or employee may be considered an admission by a party’s agent under FRE 801(d)(2)(D).^[25] Nonetheless, even if social media evidence is not admissible, such information may still form a basis of cross-examination or impeachment.^[26] Finally, where information is constantly in flux, as with Facebook, FRE 1002 – the best evidence rule – may create difficulties. However, if the information is no longer available, FRE 1004, permits the admissibility of secondary evidence.

Hundreds of millions of people subscribe to and actively use social media websites such as Facebook, LinkedIn and Twitter.^[27] With so many people subscribing to and using social media sites, the personal information that can be uncovered from these sites is overwhelming. To disregard the value of social media evidence would cause an injustice and deprive litigants of a fair disposition of their claims. Litigators that seek to admit or challenge such information must be prepared to combat the cornerstone objections of authenticity and hearsay. Practitioners are encouraged to discover and present such evidence, thereby enabling the courts to address such issues with sufficient frequency to facilitate even clearer criteria for admission.