Authenticating and Admitting Social Media Evidence

May 2nd, 2018 By Eric S. Peabody

Texas Bar Today

Facebook has been in the news lately with lots of people concerned about invasion of privacy. For litigators, our willingness to share our lives on social media has created a fertile source of evidence on liability, damages, defenses, and other critical issues.  Assuming the evidence is relevant, the primary concern of courts confronted with this evidence is ensuring that the evidence (1) was actually on the website, (2) accurately reflects the proposition for which it’s offered, and (3) is attributable to the owner of the website.  In a word, “authentication.”

The requirement of authentication is a condition precedent to the court’s determination of admissibility under Texas Rule of Evidence 104(a). This requirement is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Tex. R. Evid. 901(a). Unless the evidence sought to be admitted is self-authenticating (see Tex. R. Evid. 902, Tex. R. Civ. P. 193.7), other evidence must be used to accomplish authentication. Rule 901(b) contains a non-exclusive list of methods for authentication.  To authenticate evidence, a party need only make a prima facie showing that would allow the jury to reasonably find that the evidence is what the proponent claims.  Authentication is therefore a preliminary standard to test reliability of the evidence, which varies according to the type of evidence and even the individual judge. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). (N.B. Many of the cases construing the rules of authentication and admissibility are criminal in nature, but the same rules apply to civil cases.  See Tex. R. Evid. 101.)

In Tienda, the State introduced at trial printouts of a MySpace profile allegedly belonging to the defendant and implicating him in a shooting. The issue was whether the MySpace pages were sufficiently authenticated by circumstantial evidence.  The court noted that electronic evidence should be evaluated consistent with the rules that apply to other types of evidence, which permit numerous avenues for authentication and could include an admission or witnessing of authorship, business records of an internet service provider or cell phone company, comparison with other authenticated evidence, or content that is necessarily known only by the author. Id. at 638-41.  With regard to the proffered MySpace pages, the court held that the following circumstantial evidence was sufficient to authenticate the pages as belonging to and being maintained by the defendant: (1) numerous photographs of the defendant showing unique tattoos, distinctive eyeglasses, and earring; (2) the reference to the victim’s death and the music from his funeral; (3) references to the defendant’s gang; and (4) messages referring to the defendant having been on a monitor for a year coupled with a photograph of the defendant displaying an ankle monitor.  Id. at 645. Even though it was theoretically possible that the defendant was the victim of a conspiracy to set him up, the court held that the jury was entitled to assess the likelihood and weight of that “alternate scenario” once the State had met its prima facie burden. Id. at 646. Other courts have noted that the standards of authentication are higher for evidence from social media that emanates from a source other than the party against which it is offered. Dering v. State, 465 S.W.3d 668, 672 (Tex. App.–Eastland 2015, no pet.) (distinguishing Tienda).

Generally, unaltered photographs and videos will be admissible if they are relevant to any issue in the case and are verified by a witness as being a correct representation of the facts. Kroger Co. v. Milanes, 474 S.W.3d 321, 342 (Tex. App.–Houston [14th Dist.] 2015, no pet.) (citing Huckaby v. A.G. Perry & Sons, Inc., 20 S.W.3d 194, 209 (Tex. App.–Texarkana 2000, pet. denied)). The verifying witness must know the object involved and be able to state that the photograph or video correctly represents it. Id. The verifying witness does not need to know when the photographs or video was made or have taken or observed the taking of the photo/video. A dispute as to the accuracy of some part of the photograph or video usually goes only to the weight of the evidence, not to its admissibility. Id. The key is whether the photo/video will assist the jury’s understanding of a condition or event at issue, i.e. relevance. Id.  Therefore, even if the existence of a photo or video is authenticated, it may still be inadmissible if it is offered as evidence for a matter depicted that is not also adequately “authenticated.”  See United States v. Winters, 530 Fed. App’x 390, 395 (5th Cir. 2013) (testimony of DEA agent and admission by defendant that photos came from defendant’s Facebook page were insufficient to establish that defendant had possession and control of the pictured weapons, money, and drugs).

Takeaways: The methods and strategies to authenticate and introduce evidence from social media sites will be as varied as the content itself.  In addition to the existence and source of the evidence, counsel needs to ensure that content that is not self-evident or self-authenticating is also independently verified.