Trial Authentication of Social Network Evidence in Maryland
Here’s a quick Maryland state court trial practice review of the requirements for authenticating evidence that is obtained from online social network postings: The Maryland Court of Appeals in 2011 issued its decision in Griffin v. State, a case in which a criminal defendant was convicted of shooting a bar patron. During trial, the State sought to introduce the defendant’s girlfriend’s MySpace profile to demonstrate that, prior to trial, the defendant had allegedly threatened another witness called by the State. The printed pages offered into evidence contained a MySpace profile in the name of a pseudonym, describing a particular woman by age and birthday, and with a photograph of an embracing couple. The printed pages also contained the following statement: “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STICHES!! U KNOW WHO YOU ARE!!” When the defendant’s girlfriend was called to testify at trial, she was not asked about the pages allegedly printed from her MySpace profile. Instead, the State attempted to authenticate the pages as belonging to the girlfriend through the testimony of a police officer, who would testify to how he downloaded the information from MySpace. Among other objections, the defense objected to admission of the pages by arguing that the State could not sufficiently establish a connection between the profile and posting, and the person who allegedly posted the information. Outside of the presence of the jury, the police officer provided testimony regarding why he believed the subject MySpace profile information was posted by the girlfriend/witness. When the trial judge indicated that he would permit the officer to testify in support of authentication of redacted pages from MySpace, defense counsel agreed to a stipulation to what the officer would say in testimony, in lieu of the officer testifying, and counsel preserved his objection to admissibility. The intermediate Court of Special Appeals upheld admission of the evidence, but the Maryland Court of Appeals overturned that ruling.
The Court of Appeals found that the printed MySpace profile pages were not properly authenticated pursuant to Md. Rule of Civ. Proc. 5-901, holding that there were insufficient “distinctive characteristics” on this particular MySpace profile to authenticate the printout. The court was especially concerned that someone other than the girlfriend/witness might have created the MySpace account, and posted the “snitches get stitches” comment. The court explained that “[t]he potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that [the girlfriend/witness] was its creator and the author of the ‘snitches get stitches’ language.” In a footnote, the court took pains to distinguish authentication concerns that it had with regard to social network sites from the authentication issues attendant to emails, instant messaging, and text messages. The court opined that these types of electronic communication differ significantly from those involving an online social network profile, because email, IM and text messages are sent directly from one party to one or more intended recipients, rather than being published broadly. The court also made clear that it was not suggesting that printouts from social networking sites should never be admitted into evidence, and suggested that avenues of authentication “worthy of exploration” include asking the purported creator whether she created the profile and if she posted the subject information, searching the computer of the purported creator to examine its internet history, or obtaining information directly from the social networking site to link the profile to the purported creator.
The Griffin case establishes significant hurdles that must be overcome by any litigant wishing to authenticate and admit information from an online social network. In conducting discovery and developing trial strategy, counsel should consider if it is feasible to directly question a purported creator of online content as to whether she created the subject content. Obviously, this would not be practical in most criminal cases, but may solve the problem in many civil cases. In either type of case, counsel may wish to strongly consider seeking an order permitting search of the purported creator’s computer hard drive and internet browser history, if the online information is important enough to justify the cost of following this avenue toward authentication. Finally, in an appropriate case, a party may decide to undertake the daunting challenge of seeking user information directly from a social networking site, though the practical constraints on doing so are often significant. In light of Griffin, it is not sufficient to walk into court with a printout of online social network content, and rely solely on the fact that the page contains information that appears to identify the “owner” of the page as the purported creator of the content. The Court of Appeals has determined that concerns about whether third parties may have posted information while posing as the purported creator of the content outweigh the probity of the kind of identifying personal information that was at issue in the Griffin case.