E-Alert Case Updates

Following Griffin, Maryland High Court Expands on Techniques to Authenticate Social Media Evidence

Albert Sublet IV v. State, No. 42
Tavares D. Harris v. State, No. 59
Carlos Alberto Monge-Martinez v. State, No. 60
(Court of Appeals of Maryland, April 23, 2015)
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.mdcourts.gov/opinions/coa/2015/42a14.pdf

In a trilogy of cases, Albert Sublet IV v. State, Tavares D. Harris v. State, and Carlos Alberto Monge-Martinez v. State (Maryland Court of Appeals, April 23, 2015), Maryland’s highest court addressed the authenticiation of social media evidence and confirmed that the current rules of evidence can be applied to this quickly developing source of evidence. The Court held that in order to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be. In Sublet, the trial court did not err in excluding the admission of the four (4) pages of the Facebook conversation. In Harris, the trial court did not err in admitting “direct messages” and “tweets” in evidence. In Monge-Martinez, the trial court did not err in admitting the Facebook messages authored by the Defendant.

The Court revisited its prior seminal case, Griffin, where the Court stated that authentication of social networking evidence (MySpace posts) can pose significant problems, "because anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password". In Griffin, the Court rejected the mere printout of the screenshot in issue as authentic, because the lead investigator, who had created the document, lacked any knowledge about ownership of or who created the profile. The Court had suggested, however, that three (3) non-exclusive means of authentication may be available: 1) asking the purported creator if she indeed created the profile and also if she added the posting in question; 2) searching the computer of the person who allegedly created the profile and posting and examining 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; and 3) obtaining information directly from the social networking website to link the profile and entry to the person who created it. In this opinion, the Court further expanded on authentication methods.

In Sublet, the proponent of the evidence attempted to authenticate Facebook postings by having the alleged author admit to the profile and the posts. The alleged author, however, testified that she gave out her login name and password to others who would access her page and write things on it. She denied writing some of the posts that defense counsel was attempting to attribute to her. No showing was made from which a reasonable juror could have found the Facebook pages to be authentic and therefore, the Court found no error in the trial judge refusing to admit the Facebook postings into evidence.

In Harris, the State recovered relevant Twitter evidence (direct messages and public tweets) from two (2) of the Defendant's cellular phones. During discovery, the State notified the defense that it intended to call a detective as an expert witness in the field of forensic examination of cell phones, to testify about analysis and interpretation of digital evidence recovered during the investigation, including the direct messages. At trial, the State proffered that the detective would testify that, through the use of software, he had retrieved the direct messages from the phone and determined the participants in the conversation, and that they would move into evidence the forensic examination report of the phone the detective had compiled, which included the participants, the content of the conversation, and the times the direct messages were sent and received by the phone. The trial judge admitted the Twitter evidence because, along with the detective's proffer, there was independent verification of the Twitter account via another witness. Further, the substance of the conversation referenced a plan to avenge someone, which had only just been hatched in response to events that occurred that same day. That the plan subsequently came to fruition the following day also indicates that the direct messages were written by someone with knowledge of and involvement in the situation, which involved only a small pool of individuals. Public tweets from the other phone were also admitted, because they were authored at the same time as the direct messages that had just been authenticated and contained content that could have been only created by a "few people," and the picture on the account was of the Defendant. The appellate court determined that the direct Twitter messages were authentic and properly admitted. Moreover, the public tweets were made contemporaneously to the direct messages which were already authenticated, and a reasonable juror could also have found that the public tweets were also authentic.

In Monge-Martinez, the State sought to introduce Facebook messages received by an assault victim and sent by the Defendant reflecting his remorse for his actions. The victim identified the exhibits as Facebook messages the Defendant wrote to her while she was in the hospital being treated for her injury. The exhibits were screenshots of the victim's phone displaying the Facebook messages, which the trial judge admitted into evidence. On appeal, Defendant argued that the messages should not have been admitted because there was no identifying information from the Facebook profile, such as date of birth, nor was there testimony connecting him to authorship of the messages. The State argued that there was circumstantial evidence connecting Defendant to the messages, because the victim, who had dated him for a year, could attest that he wrote the messages and that the date-time stamps indicated that the messages were sent soon after the stabbing. The appellate court agreed with the State and observed that the lack of biological information on the evidence, does not by itself, prevent authentication, because the inquiry is context specific, and here, the distinct characteristics of the messages in their context also supported the notion that they were authored by Defendant. In addition to the social media messages, there were other letters written to the victim by the Defendant expressing remorse, and all messages were in Spanish, which was Defendant's native language, and only a few people were even aware of the stabbing incident. Therefore, the evidence was properly admitted.