The dangers of social media for parties involved in litigation are well-known to attorneys these days—although the parties themselves often don’t seem to realize that information they put on the internet is public! A personal injury plaintiff posts pictures to Instagram showing himself skiing the slopes, while at the same time claiming the injuries to his back are incapacitating. A criminal defendant uses YouTube to brag about getting away with a bank robbery. Opposing counsel files an emergency motion for continuance because his client is unexpectedly in the hospital, but his client’s Facebook page shows that he’s actually vacationing out of state. In fact, social media posts have recently been cited in criminal complaints filed against Ammon Bundy and the other armed occupiers of the wildlife refuge in Oregon. Social media offers many opportunities to catch out the unwary opponent—but once you’ve got the damning evidence in hand, how do the rules of evidence apply, so that it can actually be used in court?
The easiest, and probably the most common (at least in a civil action), method of authenticating social media evidence is simply to see if the opposing party will identify it. But if they are unable or unwilling to do so, then we must look to basic evidence law: Section 90.901, Fla. Stat., requires authentication or identification of evidence as a condition precedent to its admissibility. This requirement is satisfied by “evidence sufficient to support a finding that the matter in question is what its proponent claims.” §90.901, Fla. Stat. There is no specific list of requirements in making such a determination and the evidence may be authenticated by appearance, context, substance, internal patterns, other distinctive characteristics or by using extrinsic or circumstantial evidence. Symonette v. State, 100 So.3d 180, 183 (Fla. 4th DCA 2012) (internal citations omitted); Sunbelt Health Care v. Galva, 7 So.3d 556, 559 (Fla. 1st DCA 2009). The evidence can also be authenticated by showing it meets the requirements for self-authentication. Symonette at 183. Stated even more simply, “The requirements of the evidence code are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Sunbelt at 559. Once a prima facie case of authenticity has been established by the proponent of the evidence, any disputes as to the genuineness of the exhibit are to be resolved by the trier of fact. Sunbelt at 559-560. With regard to photographs, this means that once a photo has been authenticated and admitted, questions of possible “distortion” or manipulation go to the weight which the photograph is given by the trier of fact. See Hannewacker v. City of Jacksonville Beach, 419 So.2d 308, 311 (Fla. 1982).
While there are many cases involving the scope of discovery of social media, there is no Florida state case law discussing the admissibility of social media pages—yet. Given the prevalence of social media use, it is surely only a matter of time before a Florida state court weighs in on the issue. However, federal courts and courts in a few other states have addressed the issue. In U.S. v. Broomfield, 591 Fed.Appx. 847 (11th Cir. 2014), the Eleventh Circuit held that a YouTube video was properly authenticated under Rule 901(a), Fed.R.Evid., where the government’s evidence identified the individual in the video as the defendant, identified the firearm and ammunition in the video and established where and approximately when the video was recorded. As with the Florida evidence rules, the Court noted that authentication is allowed through circumstantial evidence.
In Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012), the Court engaged in a thorough discussion of the authentication of social media, specifically several MySpace pages. The standard for authentication and admission of evidence, and the means by which evidence could be authenticated are largely the same in Texas as in Florida: the proponent of the evidence must make a threshold showing that it is what the proponent claims it is, and may do so through direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantial evidence. Id. at 638. The Court held that the internal contents of the MySpace pages constituted sufficient circumstantial evidence to establish a prima facie case that the page was created and maintained by the defendant. Id. at 642. The pages contained photos of the defendant, references to the victim and his funeral, references to personal information about the defendant (that he had been wearing an ankle monitor for a year, along with a photo of the same) and other references to the facts and circumstances surrounding the crime. Id. at 645. The Court noted that it is within the realm of possibility that the defendant was the victim of an elaborate conspiracy in which the MySpace pages were created by “unknown malefactors,” but held that the likelihood and weight of such a scenario was for the jury to assess. Id. at 646.
The Tienda Court’s method of authentication would likewise enable a party to have the contents of a Facebook, Instagram or other social media page admitted into evidence. And once a social media page or post is authenticated, admissions contained therein are admissible under §90.803(18), Fla. Stat.See Metro. Dade County v. Yearby, 580 So. 2d 186, 189 (Fla. 3rd DCA 1991) (“it is well settled that an admission by a party opponent may be made in writing…as well as orally”).
Photographs are generally not hearsay and are admissible as substantive as well as illustrative evidence. United States v. May, 622 F.2d 1000, 1007 (9th Cir. 1980) (noting that photographs are not assertions, oral, written or non-verbal). Similarly, under Florida Statutes, a photograph is not a “statement”, defined as an oral or written assertion or nonverbal conduct intended as an assertion. §90.801, Fla. Stat. In order to have a photo admitted into evidence, the proponent must be able to establish that it fairly and accurately represents what it purports to depict. Bryant v. State, 810 So.2d 532, 536 (Fla. 1st DCA 2002). The testimony of the photographer is not necessary in order for a photograph to be admitted into evidence. Hillsborough County v. Lovelace, 673 So.2d 917, 918 (Fla. 2nd DCA 1996). Similarly, where the photo was obtained and whether it was a printed photo or a digital image, does not appear to make any difference for purposes of authentication.
In United States v. Benford, 479 Fed. Appx. 186, 191 (11th Cir. 2011), the photo that was at issue was obtained from the defendant’s MySpace page, and showed the defendant posing with two pistols that were charged in the indictment. The fact that the photo was acquired from a MySpace page did not change how it was authenticated: an ATF agent testified that the pistols in the photo had markings that consistent with the pistols that were the subject of the indictment. Id. In other words, it was the distinctive characteristics of the pistols in the photo that allowed the photo to be authenticated.
Although social media is a relatively new phenomena, proper application of the existing rules of evidence should enable the savvy litigator to present the social media evidence to the court.
Authored by: Krista L. B. Collins
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