Attorney At Law Magazine – Minnesota Edition
Author: Amelia Selvig Hartman
As a trial lawyer, one’s objectives are clear – uncover inconsistencies in the other side’s story and undermine an adverse witness’s credibility.
What better way to achieve these goals than to use a witness’s own words against him or her? And, with social media becoming an integral part of most people’s lives, including our commander in chief, trial lawyers have newfound access to a witness’s thoughts, reactions and locations.
There are several evidentiary hurdles to consider with respect to the admissibility of social media evidence, e.g., relevance and hearsay, but one particular hurdle that is not as common in business disputes is authentication. As with all forms of evidence, a proponent must show that a record is what it purports to be. For business litigators, most of the documents introduced at trial are business records, which, for the most part, are presumed to be authentic. With the fluid nature of online profiles and the seemingly easy access to “hack” other’s profiles, the question of authenticity can appear to be more tenuous. Courts across the country, however, are reluctant to impose a higher standard for authentication of social media records. Rather, this area of law is merely in its early stages of development, and courts are deciding what type of extrinsic evidence is sufficient to overcome the age-old “wasn’t me” defense.
For example, in U.S. v. Browne, 834 F.3d 403, 413 (3d Cir. 2016), the Third Circuit concluded that the state provided “more than adequate extrinsic evidence” to establish the authenticity of defendant’s Facebook messages, including testimony from the recipients regarding the exchange of Facebook messages with defendant, in-person meetings with defendant following the communications, defendant’s admission that he owned the Facebook account and conversed with some of the recipients on that account, and the fact that some of the defendant’s biographical information was included in the content of the messages.