Social media is subject to the same rules of evidence as paper documents or other electronically stored information, but the unique nature of social media —as well as the ease with which it can be manipulated or falsified—creates hurdles to admissibility not faced with other evidence.

The challenges surrounding social media evidence demand that one consider admissibility when social media is preserved, collected, and produced. It is important for counsel to memorialize each step of the collection and production process and to consider how counsel will authenticate a Tweet, Facebook posting, or photograph, for example: by presenting a witness with personal knowledge of the information (they wrote it, they received it, or they copied it), by searching the computer itself to see if it was used to post or create the information, or by attempting to obtain the information in question from the actual social media company that maintained the information the ordinary course of their business.

Notably, these same challenges face the government who must also consider the admissibility of social media when they conduct their investigation. In United States v. Stirling, the government seized the defendant’s computer pursuant to a search warrant and provided the defendant with a forensic copy of the hard drive. The government also performed a forensic examination of the hard drive and extracted 214 pages of Skype chats downloaded from the defendant’s computer—chats that were not “readily available by opening the folders appearing on the hard drive”—but did not provide this information to the defense until the morning of its expert’s testimony near the end of the trial.

The logs “had a devastating impact” on the defendant because they contradicted many of his statements made during his testimony, and he was convicted. In a short but stinging opinion ordering a new trial, the court found:

  • While both government and defense attorneys grapple with addressing and authenticating social media sources of evidence, courts largely seem to be erring on the side of admissibility and leaving any concerns about the evidence itself—such as who authored the evidence or whether the evidence is legitimate —to jurors to decide what weight that evidence should be given.

For example, social media evidence has been ruled admissible where the content of the evidence contains sufficient indicia that it is the authentic creation of the purported user. In Tienda v. State, the appellant was convicted of murder based in part on evidence obtained by the prosecutors after subpoenaing MySpace. Specifically, “the State was permitted to admit into evidence the names and account information associated with [the defendant’s profiles], photos posted on the profiles, comments and instant messages linked to the accounts, and two music links posted to the profile pages.”

The Court of Criminal Appeals affirmed the trial judge and concluded that the MySpace profile exhibits used at trial were admissible because they were “sufficient indicia of authenticity” that “the exhibits were what they purported to be—MySpace pages the contents of which the appellant was responsible for.”

In another recent case, a defendant was charged with aggravated assault following a domestic dispute with his girlfriend. At trial, the prosecution introduced Facebook messages sent from the defendant’s account in which he regretted striking his girlfriend and asked for her forgiveness. The defendant denied sending the Facebook messages and argued that both he and his girlfriend had access to each other’s Facebook accounts. Acknowledging that electronic communications are “susceptible to fabrication and manipulation”, the court allowed the messages to be authenticated through circumstantial evidence, most notably that they were sent from the defendant’s account and that the girlfriend testified that she did not send the messages.

In another instance, a federal court held that photographs of a defendant from his MySpace page, which depicted him holding cash, were relevant in his criminal trial for possession of firearms and drugs but withheld ruling on the admissibility of the photos and whether they presented a risk of unfair prejudice.

Given the proliferation of social media, the increasing sophistication of technology, and the potential challenges relating to the reliability of authentication of social media, the authentication, and admissibility of such evidence will likely be the subject of vigorous disputes between parties that may mean the difference between ultimate guilt and innocence.



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