Most people have done something that they are not too proud of at one time or another. All of us have those moments we would rather forget forever. Now, however, those moments may be immortalized forever in the pages of social networking sites such as Facebook, Instagram, Twitter and others. Usually these indiscretions are laughed about and then removed from the web. However, they take on a different significance when one is in the middle of a lawsuit. What if you are in the process of going through a divorce, lawsuit or criminal suit? Can social media be used in your case?
The answer to this question, like so many other legal questions, is that it depends. While information on social media websites may contain embarrassing, obscene or even incriminating information, the challenge is getting that evidence admitted in a court of law. Assuming the party admits to the posting, photo, etc. the information can be used as an admission of that party under Texas Rule of Evidence 801(e)2. However, this article will primarily deal with the process of authenticating and admitting this information at trial.
If a party denies that the information another party is attempting to use is genuine, that information will need to be authenticated before being admitted. Authenticating evidence is discussed by Texas Rule of evidence 901. Rule 901 states that, “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Texas Rule of evidence 901.
In layman’s terminology, this means that an item of evidence can be authenticated by other information that proves the item is what the person attempting to use it claims it is. For example, an exhibit can be authenticated by testimony of a witness with knowledge of what the exhibit is, comparisons by expert witnesses, distinctive characteristics of the exhibit, or other similar means. Texas Rule of evidence 901(b) 1, 3, and 4. Using this type of evidence against a party is a two step process. The first step is to establish that the printout from the social media website is an authentic representation of that website. The second step is to link the authentic information to the opposing party.
Authenticating information from a social media site means proving that the information in the computer printout is a fair and accurate representation of the information on the website itself. This may be able to be satisfied by the person who printed the social media information testifying that the witness printed the exhibit; the witness is familiar with the computer and printer used to print the exhibit; and the exhibit accurately depicts the web site as it appeared on that day. Texas Rule of Evidence Rule 1001(a), (c) & (d). The witness does not need to be the author of the website, but rather can testify to the fact that the pages printed from the website are accurate. Id.
Once the information has been deemed to be authentic, the party attempting to use the information must establish that the opposing party is the author of that information. One way to link the opposing party to the information may be to establish that the post or print out contains distinctive characteristics that can be linked to the author. Texas Rule of Evidence 901(b)(4).
Some of these “distinctive characteristics” include the return–address line of an email or instant message, the date and time of the correspondence, the subject line, the contents and context, internal characteristics such as known speaking or grammatical usage, nicknames or specialized terms, or any other circumstances, such as conversations or events either before or after the e–mail or instant message that tend to make it more likely that this message came from a certain person. See Shea v. State, 167 S.W.3d 98, 104–105 (Tex. App. – Waco 2005, pet. ref'd).
Similarly, the connection between a particular chat–room posting and a specific person can be established by the following: 1) the screen name can be traced to the identified person, who has previously used this specific screen name in chat–room conversations; 2) the identified person responded to a request for a meeting with the person using a specific screen name, 3) the person using the screen name identified himself as "X" and that self–identification is coupled with other particularized information that applies to X, such as a street address, e–mail address, job, or personal description, 4) the identified person had information given to the chat–room participant using the specific screen name, or 5) search of the identified persona's computer hard drive shows that the user of that computer used the same screen name as the chat–room participant. See United States v. Tank, 200 F.3d 627, 630–31 (9th Cir. 2000).
Just as e–mails, instant messages, and chat room sessions can be linked to particular individuals by witnesses with sufficient circumstantial evidence to make the link, postings on social websites should also be subject to this same method of authentication.
There’s an old saying that “If you don’t want people to know you've done something, don’t do it in the first place.” This old adage remains true in the digital age as well. Be cautious of what you post to your social media pages because that information can be used against you in court. Additionally, information on social networking sites can be useful information in your lawsuit so it pays to have print outs and be able to authenticate those printouts.