DE Supreme Court Eases Social Media Authentication

Social media postings can be submitted as trial evidence as long as the party introducing the evidence can demonstrate to the judge that a jury could reasonably conclude the postings are authentic, the Delaware Supreme Court has ruled. The court's opinion affirmed a Superior Court ruling allowing the introduction of a defendant's Facebook postings detailing a fight that led to an assault conviction. Parker v. State, No. 38, 2013.

Ruling in a case of first impression, the state supreme court held Delaware should adopt the less-stringent Texas approach to authenticating social media evidence instead of the stricter Maryland approach advocated by the defense counsel.

Under the Texas approach, an attorney can introduce social media postings as evidence if he or she can prove to the judge that a jury would reasonably find the proffered evidence is valid. The Maryland rule requires social media to be authenticated only through the testimony of the creator, the hard drive of the creator's computer, or information obtained directly from the social networking site. If an attorney cannot verify the social media message with those exact requirements, it will not be admitted as evidence.

'We conclude that the Texas approach better conforms to the requirements of Rule 104 and Rule 901 of the Delaware Rules of Evidence, under which the jury ultimately must decide the authenticity of social media evidence,' said Justice Henry duPont Ridgely in Parker.

The court's decision upholds Tiffany Parker's conviction for second-degree assault on a pregnant female. The charges stemmed from a fight between Parker and a woman named Sheniya Brown.

Parker appealed the assault charge, challenging Superior Court Judge Calvin L. Scott Jr.'s decision to allow her alleged Facebook postings detailing a fight with Brown to be submitted as evidence. The postings were cut and pasted from Parker's alleged Facebook page, posted onto Brown's Facebook page as screenshots and printed out for distribution as evidence in the trial, according to court documents.

Santino Ceccotti, of the Delaware Public Defender's Office, asserted that the state offered no proof that Parker wrote the comments or that the postings were even captured from her actual Facebook profile and not from a profile of someone pretending to be the appellant. He also claimed that Brown and a social worker printed out the Facebook comments at the Attorney General's Office, but no one ever authenticated the postings.

The Maryland Approach

Ceccotti told the court during September oral arguments that Delaware should adopt the Maryland standard for authenticating social media evidence. The Maryland procedure was established in Griffin v. State , 419 Md. 343, a 2011 Maryland Court of Appeals decision. In Griffin, the plaintiff was attempting to overcome convictions from a circuit court, claiming that the court should not have admitted pages from his girlfriend's MySpace profile into evidence. The Court of Appeals ruled that the pages were not properly authenticated 'because someone other than the purported creator could have created the profile and also posted the comment in question, when the State identified only the date of birth of the creator and her visage in a photograph on the site.' Id.

In Parker, Andrew Vella, of the Delaware Department of Justice, told the court that information obtained from social media websites should be viewed the same as any other piece of evidence submitted during trial. Vella claimed that like other types of evidence, it should be governed by Rule 901 of the Delaware Rules of Evidence, which the trial judge properly applied in this case.

'Rule 901 imposes a minimal burden on the state,' Vella said during oral arguments. 'It is a burden described by this court as lenient and easily met. The trial judge's role in authentication under 901 is to act as the gatekeeper. The trial judge is not the ultimate fact-finder as to the authenticity of the evidence. That is the function of the jury.'

An en banc court that included Delaware Court of Chancery Vice Chancellor John W. Noble, who sat by designation for retired Chief Justice Myron T. Steele, agreed with Vella. (Steele sat in on the original oral arguments, but stepped down from the court in November.)

The Texas Approach

The court said that the Texas rule is more in line with Rule 901, requiring evidence to be admitted if there is 'evidence sufficient to support a finding that the matter in question is what the proponent claims.'

'The trial judge as the gatekeeper of evidence may admit the social media post when there is evidence 'sufficient to support a finding' by a reasonable juror that the proffered evidence is what the proponent claims it to be,' Ridgely said. 'This is a preliminary question for the trial judge to decide under Rule 104. If the judge answers that question in the affirmative, the jury will then decide whether to accept or reject the evidence.'

Under the Texas approach, established by the Texas Court of Criminal Appeals in Tienda v. State, No. PD-0312-11, (Feb. 8, 2012) (circumstantial evidence allowed to 'support a finding that the exhibits were what they purported to be ' MySpace pages the contents of which the appellant was responsible for), Scott correctly allowed Parker's Facebook postings to be admitted as evidence, the Delaware Supreme Court held.

'Having applied the same rule of law that we validate today, we agree with the trial court that the post was sufficiently authenticated in accordance with Rules 104 and 901,' Ridgely said.

The state supreme court noted that there was sufficient evidence for a juror to conclude that Parker's Facebook posting was authentic. Ridgely noted that the Facebook post referenced an altercation between Parker and another woman, created on the day after the altercation, and Brown testified that she viewed Parker's post on Facebook through a mutual friend's account.

'Collectively, this evidence was sufficient for the trial court to find that a reasonable juror could determine that the proffered evidence was authentic,' Ridgely said. 'The trial court did not abuse its discretion in admitting Parker's Facebook post.'

Jeff Mordock is a Staff Reporter for the Delaware Law Weekly, an ALM sibling of Internet Law & Strategy. He can be contacted at 215-557-2485 or [email protected]. Follow him on Twitter @JeffMordockTLI.