So you have captured tons of juicy information from the opposing party’s Facebook page that will let you destroy them during cross examination. You have images from a night on the town and several damaging comments by the opponent and his friends. So… how do you get that information into evidence?
You start with the same rules that apply to all evidence. Is it relevant to the claims and defenses (or does it merely paint them in a negative light)? Is it hearsay (an out-of-court statement you will need an exception for or it will not be admitted into evidence)? Merely because it is electronic does not remove these traditional evidentiary hurdles.
Social media, like most electronic discovery, also often comes with an additional hurdle: how do I prove it is what it looks like, e.g. how do I authenticate it? Critically, authentication “requires more than mere confirmation that the number or address belonged to a particular person.” Commonwealth v. Mosley, 114 A.3d 1072, 1081 (Pa. Super. Ct. 2015). In other words, simply having a witness testify “that is her Twitter account” is not enough. You need something extra to confirm that the user actually created the content.
The easiest way to authenticate social media evidence is through an admission by its author. Absent such cooperation, try one of these methods:
- A witness with first-hand knowledge can testify as to its authenticity. Rarely, however, is there someone available to say “I saw her write that Facebook post.”
- A forensic examiner’s expert testimony can be used to explain how they collected the evidence. This technique can be effective, but is often costly. Moreover, in some proceedings, such as family law cases, limitations on the discovery process may not leave you with enough time for such a collection.
- Use circumstantial evidence to corroborate its creator’s identity. This could include characteristics often used by the author of the posts or metadata showing that a particular phone or tablet was used to create the content. Remember that the more complete your circumstantial picture, the more likely you will succeed in introducing the evidence.
To learn more about using social media evidence in court, see our post Part I – How Do You Capture it and stay tuned for Part III – Ethical Pitfalls here at the Lancaster Law Blog.