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Thursday, March 6, 2014

Introducing Social Media Evidence at Trial

For my lawyer readers out there, this Delaware case will be an interesting one. Parker v. State (Delaware Supreme Court, Feb. 5, 2014)

The question in the case was how social media evidence could be introduced at trial.  In this case, the defendant had been arrested for assault and "terroristic threatening" for getting into a fight with another woman over a disagreement involving Facebook messages.  The prosecution wanted to introduce Facebook posts allegedly authored by the defendant that would discredit the defendant's self-defense argument, including a post that included the hashtag #caughtthatbitch.  

The defense argued that the Facebook posts should not be admitted as evidence without the defendant's admission that she authored the posts.  The trial court allowed the testimony without defendant's admission, and the defendant was ultimately convicted of assault.  She appealed, and the case made its way to the state supreme court.

There are two basic schools of thought on admission of social media evidence.  One approach, adopted by Maryland, requires an admission from the author of the post to authenticate the evidence.  The other approach, adopted by Texas,  Arizona, and New York, allows circumstantial evidence to authenticate the social media content, including witness testimony, and leaves it up to the jury to decide whether the evidence is authentic.  

The Delaware Supreme Court adopted the latter approach, and upheld the conviction based on witness testimony authenticating the Facebook posts. In this case, the posts were created on the day after the incident, and specifically referenced the fight between the two women.  Witness testimony (a "friend" of the defendant's) testified that she saw the post, and then published it on her own Facebook page.  

Lesson of the day?  Be careful what you post on social media as it can be used against you in a court of law.

Hap tip to reader Amy McShane for sharing this case!

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