E-Alert Case Updates

New Trial Required in Murder Case Where State Fails to Properly Authenticate Social Media Evidence

Griffin v. State
No. 74 (Maryland Court of Appeals, April 28, 2011)
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In Griffin v. State, the Maryland Court of Appeals held that the authentication of a MySpace page by a police detective at trial was insufficient, requiring reversal of the defendant’s murder conviction and a new trial.

At trial, the State sought to introduce printouts from the MySpace page of the defendant’s girlfriend, to argue that she had threatened a key witness in the case. The detective in the case was asked to authenticate the pages by identifying the girlfriend’s face from her profile photograph and date of birth and location from the user’s profile page. To the Court, her face, date of birth, and location were not “sufficient distinctive characteristics” to authenticate the MySpace printout. The Court reasoned that there was a “potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user” which required a greater degree of authentication than was employed at trial.

The Court was concerned that anyone could create a fictitious account and masquerade under another person’s name or gain access to another’s account by obtaining the user’s username and password. In order to alleviate this concern, the Court offered several ways to authenticate such social media pages in the future. First, counsel could ask the purported creator if she created the profile and if she authored the post at issue. Second, the proponent could search the computer of the person who allegedly created the profile and posting to examine the computer’s internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question. Third, the proponent could obtain information directly from the social networking site to link the profile to the creator.

Judge Harrell wrote a dissenting opinion, and was joined by Judge Murphy. The dissenters urged the Court to adopt the federal courts’ interpretation of the analogous federal evidence rule. Under that rule, the document is properly authenticated if a “reasonable juror” could find in favor of its authenticity. To Judge Harrell, a reasonable juror could have concluded that the MySpace profile was indeed of the defendant’s girlfriend; and, moreover, there was no evidence in the record of a motive to fabricate the page.