The following blog post is an excerpt from the MyCase eBook “Using Social Media as Evidence (Or How I Learned to Stop Making Common Social Media Mistakes and Love the Tweet!)” by Scott L. Malouf, Esq. Download the full eBook for free here.
Most likely you are reading this ebook on a screen. You might share it saying, “The points on authentication are great, read them.” [Editor’s note: they are and please share widely.] If so, you created an electronic trail that could be useful evidence someday. A prolific social media user will do the same dozens of times a day.
Since social media makes it easy to share detailed information on almost any aspect of a user’s personal or business life, using social media evidence is an important skill for litigators. Beyond litigators, any attorney advising clients who regularly use social media (such as businesses, employees, schools, students, creatives, etc.) should be familiar with social media as evidence. This ebook highlights key issues to consider when using evidence from social media accounts.
As you read, please keep the following caveats in mind:
‣‣ This ebook is not definitive or exhaustive. It addresses common approaches, especially those useful in small to mid-sized matters, but additional methods exist.
‣‣ For simplicity and ease this ebook refers to the Federal Rules of Evidence (FRE), but the concepts below apply to state courts and should have persuasive, or possibly precedential, value.
‣‣ Case law regarding social media evidence is evolving. For example, some older case law applied a heightened authentication standard to social media evidence, but a more recent view questions the heightened standard and instead applies the traditional low bar. Check your jurisdiction’s case law for current law and older cases that might be cited by your opponent.
‣‣ Research your judge. What is his or her familiarity with technology, particularly social media? Because of concerns about judicial ethics and potential negative publicity, many judges do not use social media. You may need to modify your approach to suit the judge’s social media knowledge. Ask others who have appeared before the judge for insights.
‣‣ Consider evidentiary issues early and analyze what you intend each piece of evidence to show.
You Must Understand How Social Media Works
The court will probably expect you to explain how a social media service works and the legal import of those operational elements. If you don’t know how the social media service (also called a “platform”) at issue works and the legal import of its particularities, educate yourself or work with someone who understands the service and the law. Also, don’t assume your paralegal, private investigator or employee who endlessly sends selfies (how many can one person send in a day??!!?) will be able to fill in the gaps for you or the court. Social media platforms are usually more complicated than they appear; users often can’t explain “why” something works and features change frequently.
Witnesses may not be much help either. They will expect you to ask precise questions and may not be willing or able to volunteer information. For example, see this video of witness Jenna Lauer being examined by prosecutor Bernie de la Rionda (start at about 8:22). Ms. Lauer indicates she does not understand how the platform at issue, Twitter, operates or how certain information allegedly appeared in/on her Twitter account. The only fact she stated with certainty was that she never sent a single tweet.
“I’m not a Twitter person either.”
— Bernie de la Rionda, Lead Prosecutor in The State of Florida v. George Zimmerman
Additionally, lawyers utilizing social media evidence may have an obligation to comply with ethical requirements on technical competence. Comment 8 to ABA Model Rule 1.1 (Competence) states:
Maintaining Competence: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
To date, 27 states have adopted this comment. See 27 States Have Adopted Ethical Duty of Technology Competence.
Common Social Media Evidence Issues
Although each case is unique, issues of relevance, authentication, hearsay and best evidence are common evidentiary hurdles when offering social media items. Practitioners should also be aware of any decisions on judicial notice and social media as these may save time and effort.
FRE 401’s definition of relevance is broad. Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” As numerous cases demonstrate, social media accounts may contain exactly this type of information. The most commonplace example is a post-accident image, possibly from a personal injury plaintiff’s Facebook account, of the plaintiff engaged in acts inconsistent with claims, say an injured cyclist vigorously mountain biking. Often such information will be relevant. See People v. Nunn, 2016 Ill. App. Unpub. LEXIS 957 (2016) (unpublished)(trial court erred by excluding authenticable copies of Facebook messages while admitting testimony about messages; copies of messages were relevant to criminal defendant’s state of mind or intent as well as to impeach testimony and attack witness credibility).
But, as courts become more sophisticated about social media evidence, there is pushback on overly broad or speculative claims of relevance. See Forman v. Henkin, 134 AD3d 529 (1st Dept. 2015)(rejecting sweeping social media discovery demands). The safest path is to analyze each item of social media evidence, such as an individual post, for relevance rather than make broad assumptions about a social media account or its contents.
Download the full eBook “Using Social Media as Evidence (Or How I Learned to Stop Making Common Social Media Mistakes and Love the Tweet!)” by Scott L. Malouf, Esq. for free!