Last week, the Louisiana appellate court, 4th Circuit, issued a written opinion in a felony criminal case disallowing key social media evidence due to a lack of authenticity. (State of Louisiana v. Demontre Smith, La. Court of Appeals, April 20, 2016) The prosecution alleged that Demontre Smith committed aggravated assault with a firearm when he pointed a gun at a rival and pulled the trigger, only to have the weapon misfire.
In seeking to introduce key Facebook evidence in support of the case, a New Orleans police
officer testified that a Facebook post depicted Smith holding a revolver and warning the victim “that his mom needs to get life insurance on him.” Smith’s alleged post also stated, “Just cocked me a new one, b—-. I’m done talking. See you tomorrow. Better be ready. Broke ass mama better have insurance.”
Under cross-examination, the NOPD officer, who offered the evidence in the form of screen shots, conceded that she lacked any corroborating circumstantial evidence to support the authentication of the social media posts. The defense subsequently filed a motion to exclude the evidence, which was denied by the trial court. However, the appellate court reversed the trial court, writing in its opinion: “We find the social media posts the state seeks to introduce at trial were not properly authenticated, as the state presented no evidence in order to carry its burden at the hearing on Mr. Smith’s motion to exclude.” The Appellate court noted that such evidence could include testimony or computer data obtained from the purported creator of such posts, or by demonstrating that specific information or identifying characteristics contained within such posts could reasonably authenticate its original creator.
“Accordingly, we find the proper inquiry is whether the proponent has ‘adduced sufficient evidence to support a finding that the proffered evidence is what it is claimed to be,” the appellate court wrote, adding that sufficient proof will vary from case to case, and the proof of authentication may be direct or circumstantial.
Louisiana v. Smith is yet another illustration why software that supports best practices is needed to properly collect and preserve social media evidence. Ideally, a proponent of the evidence can rely on uncontroverted direct testimony from the creator of the web page in question. However, in many cases, such as in Louisiana vs. Smith, that option is not available. In such situations, the testimony of the examiner who preserved the social media or other Internet evidence “in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a finding” that the evidence presented is what the proponent asserts. Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1154. (emphasis added) (See also, Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 546 (D.Md. May 4, 2007) (citing Perfect 10, and referencing MD5 hash values as an additional element of potential “circumstantial indicia” for authentication of electronic evidence).
One of the many benefits of X1 Social Discovery is its ability to preserve and display all the available “circumstantial indicia” or “additional confirming circumstances,” in order to present the best case possible for authenticating social media evidence collected with the software. This includes collecting all available metadata and generating a MD5 checksum or “hash value” of the preserved data for verification of the integrity of the evidence. It is important to collect and preserve social media posts and general web pages in a thorough manner with best-practices technology specifically designed for litigation purposes. There are over twenty unique metadata fields associated with individual Facebook posts and messages. Any one of those entries, or any combination of them could provide unique circumstantial evidence that would establish foundational proof of authorship.