Evidentiary Challenges to Social Media Evidence Now Routine When Best Practices Not Utilized

by John Patzakis

This past month of April saw a surge in case law involving social media cases with 112 cases published on Westlaw, representing a substantial increase from January of this year. There is no question that the volume of social media cases continues to rapidly increase each month. Note that this survey group only involves published cases on Westlaw. With less than one percent of total cases resulting in published opinions, and considering this data set does not take into account internal or compliance investigations or non-filed criminal cases, we can safely assume that there were tens of thousands more legal matters involving social media evidence that were adjudicated, or otherwise resolved last month alone.

What I found particularly compelling about these 112 April cases, is that six of those cases involved evidentiary challenges to social media based upon improper foundation and authentication grounds. Specifically, those cases are:

1. Smith v. State, Supreme Court of Mississippi, April 17, 2014, 2014 WL 15113032.

2. People v. Anderson, Court of Appeals, Michigan, April 08, 2014, 2014 WL 13833993.

3. Randazza v. Cox, U.S. District Court, Nevada, April 10, 2014, 2014 WL 1407378

4. People v. Isom, Court of Appeals, Michigan, April 22, 2014, 2014 WL 1614536

5. Nastatos v. State, Supreme Court of Delaware, April 15, 2014, 2014 WL 1512887

6. Krylova v. Genentech Inc., U.S. District Court, N.D. California. April 14, 2014, 2014 WL 1478698

In People v. Anderson, the defendant appealed his sexual conviction for sexual assault by asserting ineffective assistance of counsel, due to his counsel’s failure to object when screenshots – not full electronic copies – of Facebook evidence were used to convict him. Specifically, the defendant contended that the metadata from his alleged Facebook messages would have revealed that the victim actually used passwords she stole from defendant’s home to forge the Facebook messages from defendant on her own electronic devices, and thus was provided ineffective counsel by failing to object accordingly at trial.

In the first case listed, Smith v. State, the Defendant’s sole basis for appealing his capital murder conviction was that the prosecution’s Facebook evidence consisting of simple screen prints was not property authenticated. The Mississippi Supreme court noted in its decision that the prosecution offered minimal circumstantial evidence to establish the authenticity of the Facebook pages and no evidence to demonstrate that the photos were not altered.  However, in upholding the conviction, the court ultimately determined that direct evidence testimony in that case was sufficient.

These cases, along with Commonwealth v. Banas, which we featured last month, where a Massachusetts court disallowed Facebook screenshots on authentication grounds,  illustrate the perils of relying on mere printouts of key social media evidence. Without utilizing best practices and instead relying on mere screen prints of social media and other website evidence, at best a party faces a court challenge that would require up to tens of thousands of dollars in attorney fees to defend. At worst, the evidence may be disallowed, which could very well be dispositive of the case or at least severely impair a party’s position.

The much better approach is for the proponent of social media evidence to collect and preserve such evidence with best practices technology to establish a proper foundation by 1) automatically generating MD5 hash values of the evidence and collection logs including date stamps at the time of collection; 2) collecting all available metadata associated with social media items; and 3) collecting the full account as opposed to limited and incomplete segments. Only with this approach can the proponent of the evidence represent that best practices were employed in the collection and preservation of the social media evidence in question.