The Mississippi Supreme Court recently set forth a standard for authentication of social media profiles and messages. In Smith v. State, 2012-CT-00218-SCT (Miss. 2014), the court addressed the admissibility of Facebook messages purportedly sent by the defendant in a capital murder case.
According to the prosecution, the defendant exchanged several Facebook messages with his wife regarding their relationship and the wife’s child from a previous relationship, who was the murder victim. To authenticate the messages, the prosecution offered the testimony of the wife, who stated that she had received the messages from the defendant. The prosecution also noted that the messages were accompanied by the defendant’s name and a grainy photo.
In assessing the authenticity of the messages, the court noted that “social media poses unique issues regarding what is required to make a prima facie showing that the matter is what the proponent claims.” In particular, the court was concerned with the ease with which one can create a Facebook page and masquerade as another individual, fabricating corroborating evidence to fit one’s story.
Accordingly, “the fact that an electronic communication on its face purports to originate from a certain person’s social networking account is generally insufficient standing alone to authenticate that person as the author of the communications.” In other words, “something more than simply a name and small, blurry photograph purporting to be [the defendant] is needed to identify the Facebook account as his in the first place.”
The court offered the following means of authentication:
- the purported sender admits authorship,
- the purported sender is seen composing the communication,
- business records of an internet service provider or cell phone company show that the communication originated from the purported sender’s personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have access to the computer or cell phone,
- the communication contains information that only the purported sender could be expected to know,
- the purported sender responds to an exchange in such a way as to indicate circumstantially that he was in fact the author of the communication,
- history on the purported sender’s computer indicates authorship; and
- identifying information from the Facebook profile, such as date of birth, interests, hometown, or the like, was provided.
The court also noted the importance of eliciting some evidence of account security given that user’s accounts can be accessed by friends and family. Given the ease with which social media accounts can be created and accessed, evidence of social media activity seems to carry a heightened authenticity requirement. Any lawyer hoping to use such evidence should keep authenticity requirements in mind and, in the civil context, seek appropriate discovery early in the case to authenticate social media materials.
This article was prepared by James V. Leito IV
(firstname.lastname@example.org / +1 214 855 8004), an associate in Norton Rose Fulbright’s litigation practice group.