Admitting Social Media Evidence at Trial
March 2, 2015 By Mark A. Kohl
Maryland’s appellate courts last addressed the topic of social media evidence in Griffin v. State, a 2011 Court of Appeals decision. In Griffin, the Court of Appeals reversed the defendant’s convictions and held that the trial court improperly admitted evidence from the defendant’s girlfriend’s MySpace page (the post on the admitted page was that “Snitches get stitches”). At trial, the prosecution authenticated the page by noting that the social media profile matched pictures and the reported creator’s date of birth with the defendant’s girlfriend. The Court of Appeals held that the State (as the proponent of the evidence) had failed to establish that the defendant’s girlfriend (and not someone else) had created the profile.
The Court of Appeals for the Fourth Circuit recently clarified how statements made in social media may be properly authenticated and admitted (at least in a federal case). In United States v. Hassan the District Court for the Eastern District of North Carolina admitted statements made by the defendants on Facebook pages and in YouTube videos. The prosecution, through the use of IP and email addresses, established that the statements on the Facebook pages and that the YouTube videos were uploaded from email accounts connected to the defendants. The Fourth Circuit panel determined that the prosecution had demonstrated a sufficient nexus between the defendants and the statements for admissibility.
In the absence of evidence which links the statements made on a social media page to the declarant the Griffin decision will likely prevent introduction of that statement. Any investigation designed to capture incriminating or otherwise useful social media evidence should be conducted with an eye towards authentication and eventual admissibility at trial.