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Social media, evidence and authentication

You are scrolling through information posted on social media sites about a key witness against your client. From blog posts attributed to the witness, to photographs of the witness sporting a large tattoo of a marijuana leaf, to a group photograph of the witness with several other witnesses in the case at a bar — “shared” by one of the individuals in the photo and bearing a date stamp of a night the key witness testified in his deposition that he was asleep at home.

You print out these posts, planning to put evidence tags on them and offer them into evidence. Is it that easy? Perhaps you had better read on.
Evidentiary issues: authentication

Introducing evidence you find in cyberspace implicates the same rules of admissibility that govern evidence gathered through other means.

Regarding the introduction of photographic evidence discovered online, People v. Beckley (2010) 185 Cal.App.4th 509 is instructive. Beckley held that a photograph of the girlfriend of a convicted criminal defendant flashing a gang sign, which police detective had downloaded from the girlfriend's MySpace page, should have been excluded because of failure of prosecution to authenticate it properly.

The police detective could not testify that the photo truthfully depicted the girlfriend flashing the gang sign and, unlike in People v. Doggett (1948) 83 Cal.App.2d 405, no expert testified that the photo was not a composite or fake.

The court stated that “Such expert testimony is even more critical today to prevent the admission of manipulated images. With the advent of computer software programs such as Adobe Photoshop it does not always take skill, experience or even cognizance to alter a digital photo.” (Beckley, 185 Cal.App.4th at 515, citation and internal quotation marks omitted.)

Other jurisdictions have dealt with the introduction of evidence from social media sites as well.

In Griffin v. State of Maryland (2010) 415 Md. 607, Maryland's high court concluded that evidence of a criminal defendant’s girlfriend’s MySpace page posting, “JUST REMEMBER SNITCHES GET STITCHES,” to corroborate evidence that she had threatened a witness, was properly authenticated and admitted into evidence by testimony of police officer who had printed the posting: (1) about the content and context of the message; (2) that the page contained a photograph of the defendant with the girlfriend; (3) that the page contained the girlfriend’s birthdate; and (4) that the message referred to the defendant by his nickname, Boozy.

And regarding the use of social media in cross-examination, in Daniel v. State (2009) 296 Ga.App. 513, the court held in a child molestation trial based on accusations by the 11-year-old step-grandchild of the defendant, that the trial court did not abuse its discretion in barring defense counsel from cross-examining the victim about her MySpace profile in which she listed her age as 17 years old and her occupation as an Atlanta Falcons cheerleader.

The Georgia court of appeals rejected the defendant's contention that such cross-examination was proper because the victim’s age is an essential element of crime and the victim’s prior inconsistent statement about her age properly could be used to impeach her credibility. The victim’s age was undisputed, and the victim’s prior statement that she was a Falcons cheerleader was irrelevant.

The bottom line is that evidence rules apply both on and offline, and authenticating evidence acquired from the Internet presents its own slew of issues — from hearsay, to relevance, to authentication.

A working knowledge of the case law and evidentiary rules in this area will allow the tech-savvy lawyer to successfully present the golden nuggets of information they find online to a live jury in court. Good luck!

Patrick is chair of the California State Bar Committee on Professional Responsibility and Conduct and immediate past chair of the San Diego County Bar Association Ethics Committee. She writes and lectures on ethics nationally and internationally. Patrick is also a San Diego County deputy district attorney in the Sex Crimes and Stalking Division and has been named by her peers as one of the 2010 Top 10 criminal attorneys in San Diego by the San Diego Daily Transcript and a 2010 Superlawyer. She can be contacted at wendy.patrick@sddt.com. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.

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