Social media evidence in particular presents unique challenges as to authentication because it can be difficult to attribute statements or actions taken via the Internet to a specific person.
Individuals often have many social media and email accounts, in which they may or may not use their real names. In addition, “hacking” social media accounts — whereby an unauthorized user accesses another individual’s account — is becoming an increasingly common occurrence, which creates an opportunity for plausible deniability regarding any specific instance of authorship.
In light of these issues and the growing prevalence of social media evidence, trial attorneys must understand the rules and case law surrounding authentication of these materials at trial as well as how courts and judges may look at how such evidence gathered from social media will be authenticated and allowed to be considered.
In a new white paper, authors Daniel Garrie and James Mariani provide an overview of the Federal Rules of Evidence (FRE) and key case law pertaining to the relevant issues concerning the authentication of social media evidence.
Daniel Garrie is the Senior Partner & Co-Founder for Law & Forensics, a consulting firm that specializes in e-discovery, software, computer forensics, and cybersecurity. Garrie leads a team that works with clients across industries on software, cybersecurity, e-discovery, and digital forensic issues all over the globe.
James Mariani, CIPP-US and CIPP-E, is a former Assistant District Attorney in the Cyber Crimes Unit & Frauds Bureau at Kings County District Attorney’s Office in Brooklyn, NY. James is currently pursuing his LLM at Cornell Tech.
EXCERPT from Authenticating Social Media Evidence:
Some courts have taken a tough stance as to the authenticity of social media evidence when the attribution of the exhibit to a particular author is an issue. For instance, in State v. Eleck, the defendant offered into evidence printed Facebook® messages between the defendant and a state witness. The state witness objected on the grounds that the authorship of the messages could not be authenticated. In response, the defendant testified that the messages in question came from an account owned by the state witness based on the facts that the defendant “recognized the user name as belonging to [the state witness]”; the account “contained photographs and other entries identifying [the state witness] as the holder of that account”; and the account owner removed the defendant from her list of Facebook friends after she testified that she had not communicated with him. The state witness responded with testimony that her Facebook account was “hacked” and she was unable to access her account for some time.
Download the White Paper here: