May 2020 UPDATE: Please see “Unfriending” Evidence – Maryland Follows “Reasonable Juror Standard in Authentication of Social Media.
In Griffin v. State, No. 74 (Sept. Term, Apr. 28, 2011), Maryland’s highest court reversed a murder conviction because printed MySpace pages were not properly authenticated.
Mr. Griffin was charged with shooting another person. The State introduced Ms. Barber, his girlfriend’s, MySpace profile to show that she had threatened a State’s witness. The page said: “REMEMBER SNITCHES GET STITCHES!! YOU KNOW WHO YOU ARE!!”
The State attempted to authenticate the MySpace page through the testimony of a police officer who identified people in a photo on the page, and provided other similar information, such as residence and date of birth, that comported with Ms. Barber’s information. Later, the parties stipulated to what the officer would have testified, however: “When Ms. Barber had taken the stand after being called by the State, she was not questioned about the pages allegedly printed from her MySpace profile.”
The Court noted that “anyone can create a fictitious account and masquerade under another person’s name. . . .” It pointed out that a Boston internet company created a profile for a toy named “Freddi Staur,” and nearly 200 Facebook users added the frog as a “friend.”
The Court, relying on the decision of The Honorable Paul W. Grimm in Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D.Md. 2007), noted: “[A] witness with knowledge, such as Ms. Barber, could be asked whether the MySpace profile was hers and whether its contents were authored by her; she, however, was not subject to such inquiry when she was called by the State.”
The Court squarely distinguished authentication of a social networking site from authentication of email: “[A]uthentication concerns attendant to e-mails, instant messaging, correspondence, and text messages differ significantly from those involving a MySpace profile and posting printout. . . .”
It made clear that “we should not be heard to suggest that printouts from social networking sites should never be admitted” and provided several illustrative methods of authentication, including: 1) asking the creator “if she indeed created the profile and also if she added the posting in question. . . .”; 2) a forensic examination of the computer in question; and, 3) obtaining the information directly from the social networking site.
In Lorraine, the Court noted that “considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration . . . because the proponent cannot lay a sufficient foundation to get it admitted.” See generally, P. Grimm, M. Ziccardi, and A. Major, “Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information,” 42 Akron L.Rev. 357 (2009).
As noted in Lorraine, “if it is critical to the success of your case to admit into evidence computer-stored records, it would be prudent to plan to authenticate the record by the most rigorous standard that may be applied.” In Griffin, the excluded MySpace pages were, according to the State, “probably the most important witness in this case. . . .”