Authenticating social media evidence for use at trial

Issue November/December 2018 November 2018 By Sandra L. Ward
Civil Litigation Section Review
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Sandra L. Ward

With nearly 70 percent of Americans using some type of social media in 2018, obtaining and using social media evidence has become an integral component of a litigation strategy. Social Media Fact Sheet, Pew Research Center, Feb. 8, 2018, Personal profiles found on Facebook, Instagram, Twitter and dating sites often provide an abundant source of evidence, especially in the context of personal injury, domestic relations and employment cases. For example, status updates and photos can be used to challenge claims of injuries and mental distress, reveal a litigant’s financial status and assets, and create timelines. Social media has become such a common source of evidence that websites for numerous personal injury law firms throughout the country warn of the dangers of posting on social media and encourage litigants to restrict their privacy settings and avoid posting anything online that could be potentially harmful to their claim. In the event that opposing litigants do not heed this advice, and you have acquired revealing information from social media profiles during the course of discovery, your next step is to ensure that you will be able to enter the material as evidence at trial.

As with other evidence, the admission of social media evidence first requires a showing of relevancy. In Massachusetts, relevant evidence is liberally defined as evidence that tends to make a fact of consequence more or less probable than it would have been without the evidence. Commonwealth v. Schuchardt, 408 Mass. 347, 350 (1990). Further, evidence is relevant “if in connection with other evidence it helps a little.” Commonwealth v. Tucker, 189 Mass. 457, 467 (1905). After a preliminary showing of relevancy of a social networking profile or post, a proponent must authenticate the evidence in order to gain admission. Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977). Generally, the authentication requirement is satisfied by a showing that there is sufficient evidence to support a finding that the item is “what its proponent represents it to be.” Id. Circumstantial evidence may be used to demonstrate that evidence is authentic. Commonwealth v. Tran, 460 Mass. 535, 546 (2011). For electronic communications, ranging from captures of complete Facebook profiles to printouts of emails and messages exchanged on social networking sites, a proponent must provide sufficient evidence to conclude “that it is more likely than not” that the messages or content were authored by the person whom the proponent claims. In re: Adoption of Nash, No. 15-P-1302, slip op. at 3 (Mass. App. Ct. May 12, 2016) (unpublished Rule 1:28 decision); see also Commonwealth v. Purdy, 459 Mass. 442, 447 (2011); Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 367 (2014). The determination is a preliminary question of fact to be decided by the judge. Renzi v. Paredes, 452 Mass. 38, 52 (2008). When assessing authenticity, a trial judge must determine whether there is sufficient evidence for a reasonable jury to find by a preponderance of the evidence that the item in question is what the proponent claims it to be. Purdy, 459 Mass. at 447; see also Oppenheim, 86 Mass. App. Ct. at 366. If the judge finds that this preponderance of the evidence standard is met as to authenticity, and the evidence is otherwise admissible, the social media content should be admitted. Purdy, 459 Mass. at 447.

Challenges to the admission of social media evidence in particular are more likely to be based on authentication than relevancy. While authenticity can be more easily shown for public records, social media evidence presents unique authentication challenges, as it is not unheard of for people to create fake accounts under other individuals’ names. Between January and March 2018, Facebook alone deleted over 500 million fake accounts. Alfred Ng, Facebook Deleted 583 Million Fake Accounts in the First Three Months of 2018, CNET, May 15, 2018, Login information to a site can also be compromised. As a result, in the absence of an agreement as to authenticity, courts in Massachusetts require “confirming circumstances” to demonstrate that electronic evidence is authentic. Mass. G. Evid. § 901(b)(11) (2018). Expert testimony is not required to authenticate the source of electronic communications. Id. Attorneys can use the methods discussed below to ensure the social media evidence they have collected is admitted at trial.

1. Using stipulations and requests for admissions to establish authenticity

A stipulation as to the authenticity of a social media profile or post from opposing counsel is the simplest way to have the material admitted. Authenticity of social media evidence can also be established by using requests for admissions under Massachusetts Rules of Civil Procedure Rule 36. Rule 36 allows a litigant to serve on another party a written request for admission of the truth of any matters within the scope of discovery. Mass. R. Civ. P. 36(a). In the case of social media evidence, a lawyer could request an admission of authenticity of the electronic evidence and include with the request a copy of the material to be authenticated, for example, a capture of a Facebook profile or post. After service of requests for admissions, the other party has 30 days to respond to the requests. Under Rule 36(a), the matter is admitted if a response or denial is not served within 30 days after service of the request for admission. If the opposing party admits the profile is authentic, or fails to respond to the requests, the authenticity of the social media evidence would be considered “conclusively established.” Mass. R. Civ. P. 36(b).

2. Testimony of a witness with knowledge to identify a social media profile

Electronic evidence can be identified through the testimony of a witness with knowledge that the evidence is what the proponent claims it to be. LaCorte, 373 Mass. at 704; see also Mass. G. Evid. §901(b)(1) (2018). In a civil case, this can be achieved by asking the holder of the account during a deposition or at trial to confirm they maintained the profile and authored the relevant posts. For photographs posted on social networking sites, testimony that a person is the same person depicted in photographs should be enough. Alternatively, a member of the account holder’s household who saw the person use the social media account, or make the posts in question, could also testify as to authenticity.

3. The confirming circumstances requirement for authenticating contested electronic evidence

In cases where the authenticity of social media evidence is contested, evidence that the social networking profile bears the name of a specific person is not sufficient by itself to authenticate the profile as having been created or authored by the person whose name is on the account. Purdy, 459 Mass. at 450 (2011). Instead, the proponent must authenticate the evidence with confirming circumstances or distinctive characteristics. This analysis may be critical in products liability cases, especially where the person who maintained the profile is deceased and unable to testify or otherwise stipulate to authenticity. It can also be used in criminal cases where a defendant does not testify. In addition, this method is available in the event that the authenticity of the social media evidence is refuted, perhaps by claims that a shared computer was used to access the account, the account log-in information was stolen, or the account was created by a third party.

As stated, social networking evidence can be authenticated using circumstantial evidence, such as distinctive characteristics, internal patterns, appearance, and contents and substance. Purdy, 459 Mass. at 447-48. Despite a claim that others had used his computer, and a denial that he authored certain emails, in Commonwealth v. Purdy, sufficient evidence was found to authenticate emails as having been authored by the defendant where one email contained a photo of him and another included an unusual characterization of the defendant and the services his business offered. 459 Mass. at 450-51. In the context of a Facebook profile, a similar showing could be made by pointing out a specific “About” section and timeline posts with recent photos of the author. Watch for unique language or speech patterns, slang, nicknames and personal references, as well as any other content that can be shown as specific to the author to prove that the profile contains distinctive characteristics making it more likely than not that the person you claim is the account holder is in fact the author of the content. The use of the same screenname among various social media profiles and websites may also be useful in an authentication analysis.

Along with distinctive characteristics, confirming circumstances can also authenticate evidence. Commonwealth v. Hartford, 346 Mass. 482, 488 (1963). In the case of letters, confirming circumstances might be an identification of handwriting, or a showing that the correspondence was a reply to a prior letter. Purdy, 459 Mass. at 449-50. For social media profiles and other electronic evidence, confirming circumstances can be shown when the content in the profile or message is corroborated by actions by the author. For example, in Commonwealth v. Foster F., the Massachusetts Appellate Court agreed with the lower court’s finding of sufficient confirming circumstances that a defendant authored Facebook messages when the author of the messages proposed meeting the victim on a certain day, and did meet the victim as discussed electronically. 86 Mass. App. Ct. 734, 737-38 (2014). Facebook check-ins could be used to authenticate a social networking profile in the same way, by showing that the activities discussed on the Facebook profile matched the real-life actions of the person. In a June 2018 Rule 1:28 decision, the Massachusetts Appellate Court affirmed a determination that text messages were authentic when the sender referenced his recent hospitalization and use of a certain drug, and a witness testified that she had received screen shots of the text messages from a third party and pointed out which messages were sent by whom. In the Matter of N.F., No. 17-P-979, slip op. at 2 (Mass. App. Ct. Jun. 4, 2018) (unpublished Rule 1:28 decision). Similarly, authenticity of a social media profile can be demonstrated by referencing specific details in status updates or other content, especially information that would likely only be known by the person you seek to prove as the author. Prior to trial, consider using depositions to elicit testimony that will allow you to authenticate social media profiles and content through confirming circumstances. For example, you could question the witness about specific activities and posts, employment history or other information contained in the profile.

Social media profiles, where people are prone to sharing revealing personal details, can provide invaluable information during litigation and may be a vital component of your case. If you anticipate challenges to the admission of social media evidence at trial, especially on the grounds of authenticity, plan ahead with a strategy so that the electronic evidence can be used to support your case. Preparation in advance will ensure that you are able to show sufficient confirming circumstances or distinctive characteristics to establish that the social media evidence you seek to introduce is authentic and admissible. 

Sandra L. Ward is an assistant director and investigative report writer for Smith & Carson, an investigative research firm specializing in social media investigations, complex fact investigations, and juror research and analytics. She previously worked in private law practice and currently serves on the executive board of the Greater Milford Area Bar Association.