Chances are that, if you are on-line and reading this blog, you just signed off your Facebook account, MySpace account, or Twitter account. Social networking websites grow as people seek to share pictures, opinions, views, celebrity sightings, etc. Now that many of us have voluntarily shared our private lives with our 1,500 closest friends, the issue is what are the effects of yielding our privacy?
Maryland’s appellate courts recently had occasion to address litigation issues arising from social networking websites. In Griffin v. State, the Court of Special Appeals of Maryland addressed the issue of authentication. This required a determination of whether people and statements were who and what they appeared to be. The ultimate question was whether there was sufficient evidence to provide to a jury information obtained from a social networking website.
In Griffin, the victim was murdered. The first trial ended in a mistrial when the jury was unable to reach a unanimous verdict. In the second trial, a witness for the State substantially altered his testimony from the first trial. When asked to explain the discrepancy, the witness stated that he had been threatened by the Defendant’s girlfriend, who alleged that he “might catch a bullet if he showed up in court.” In support of this testimony, the prosecutor produced a printout from the Defendant’s girlfriend’s MySpace page, which stated: “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!” Defense counsel objected, arguing that the State had not sufficiently connected the profile to the Defendant, and thus the prosecutor should not be permitted to enter the printout into evidence to prove that the witness had been threatened into committing perjury.
The trial court permitted defense counsel to examine, under oath, the State police investigator who discovered the profile. Defense counsel asked: “How do you know that this is the Defendant’s girlfriend’s web page?” The investigator pointed to the picture of the girlfriend, standing with the Defendant, on the homepage, along with information about the girlfriend’s birth date and reference to her children (“I HAVE 2 BEAUTIFUL KIDS”) to corroborate the profile’s ownership. Despite the inability to determine the specific date of the alleged threat, the trial court admitted the following into evidence, as authenticated and sufficiently connected to the girlfriend: (1) the profile printout, (2) the photo, (3) the girlfriend’s identifying information, and (4) the threatening “blurb.” The Defendant was convicted.
On appeal, the Defendant argued that the trial court committed legal error by allowing the MySpace information into evidence. The appellate court, lacking both Maryland precedent and case law from other jurisdictions, turned to Md. Rule 5-901, which governs authentication. Although the rule makes no direct reference to on-line networking websites, the rule gives a trial court broad leeway to authenticate. “Circumstantial evidence, such as appearance, content, substance, internal patterns, location, or other distinctive characteristics” may show that the evidence is exactly what it purports to be.
The rule simply requires that the evidence show that the person to whom any words are attributable is actually that person and not another person. The appellate court stated that, when a social networking page lacks obvious ownership, other forms of identification may be used, such as pictures, personal information, and physical descriptions, particularly recent postings. When there is only a small amount of information available, courts look to the quality — and not the quantity — of the evidence to establish ownership. In this case, the appellate court affirmed the conviction, ruling that the trial court had not committed error when it ruled that the evidence had been authenticated.
Social networking websites present special authentication obstacles. For example, messages posted anonymously and messages using pseudonyms are difficult to determine authorship.
Social networking websites provide a wealth of information for everyone, including information that attorneys can use. You may see a Facebook page, but an attorney sees another tool in his or her “discovery” arsenal. Social networking websites are just another example of how a profession rooted in hundreds of years of tradition can continue to grow and use contemporary information outlets to better serve the needs of their clients.
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