Application of Maryland’s Evidentiary “Unfriending” Rule to Recent Events?

Maryland’s Spoliation Standard
January 11, 2021
Courts Cannot Order a “Quick Peek” Without Consent
January 16, 2021

The Baltimore Sun reports that:  “In Maryland and beyond, those who once bragged about overrunning the Capitol are now deleting their [social media] photos ….” T. Prudente, “As scrutiny intensifies over deadly U.S. Capitol riots, Marylanders delete photos, social media trails,” The Baltimore Sun (Jan. 12, 2021).

That alleged action may have evidentiary consequences.  I wrote a blog about the Maryland decision regarding “unfriending” evidence, State v. Sample, 468 Md. 560 (2020).  A liquor store had been robbed by two men.  One, Mr. Mayo, was shot and killed by the store owner.  The other, believed to be Mr. Sample, got away.

Law enforcement tracked Sample down and he was charged.  A search of Sample’s Facebook profile showed that he “unfriended” Mayo a day after the robbery.

The prosecution introduced evidence that a robbery defendant had “unfriended” his deceased accomplice a day after the robbery-gone-bad. The unfriending was offered to show that the defendant was distancing himself from the decedent.  In other words, it was inculpatory.

Maryland’s highest court held that it was not an abuse of discretion to admit the evidence:

Given that there was evidence that Sample was the surviving attempted robber, i.e., Mayo’s accomplice, Sample had a motive to sever ties with Mayo after the attempted armed robbery. At the hearing on the motion in limine, the State  argued that surveillance video showed the two men walking together about fourteen minutes before the crime occurred. The State also argued that cell phone records showed that there was a phone call made by Sample to Mayo about an hour before the crime occurred. And significantly, the State pointed out that, during an interview with detectives, Sample denied knowing Mayo. Sample’s denial of knowing Mayo during the interview was consistent with the act of unfriending the claude.mayo.5 profile from the Solo Haze profile—both were attempts by Sample to separate himself from Mayo.
These circumstances indicate that Sample was not a mere bystander or potential eyewitness to the attempted armed robbery. To the contrary, if believed, the State’s argument at the hearing on the motion in limine demonstrated that Sample was Mayo’s accomplice, and had reason to distance himself from Mayo by unfriending him on Facebook.
Sample, 468 Md. at 602–03 (emphasis added).  While “unfriending” alone did not prove guilt, it was admissible evidence.
Sample involved criminal charges.
The “unfriending” and deletion may also implicate spoliation in civil litigation that may be reasonably anticipated due to injury to persons or property.
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Some other “unfriending” decisions include Kerry v. Sun Life Fin. (US) Servs. Inc., 2019 WL 206093, at *5 (D. Me. Jan. 15, 2019) (plaintiff alleged differential treatment in part because she was unfriended and other employees were not),  Vinci v. US, 2017 WL 1954541 (W.D.N.Car. May 10, 2017) (defendant unfriended minor, solicited photos, and sought to re-friend minor),  People v. Degree, 2017 WL 6450751 (N.Y.Co.Ct. July 19, 2017) (post-verdict unfriending alleged to show consciousness of guilt), State v. Clough, 2015 WL 11181918, at *6 (N.H. Jan. 7, 2015) (defendant permitted to, but did not ask, about unfriending), and In re Adopotion of K.C., 2014 WL 4555908 ( Ct. Apls. Oh. Sept. 15, 2014) (mother’s unfriending father had no substantive value). In the context of judicial unfriending, see, e.g., In Re Disqualification of Kerenyi, 160 Oh.St.3d 1201, 153 N.E.3d 121 (2020) (judge with 1,400 friends unfriended victim).
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