Lawyers attempting to get social networking into evidence must contend with a group of judges who probably have never used a social networking site among the seven of them.

(I’d love to be proven wrong. To be fair, a quick check of Facebook shows that Judge Bell has a page with 30 friends, including public figures like Stephanie Rawlings-Blake and Catherine Pugh. However, he has no photograph, so it looks like it’s not being used. Sally Adkins might have a page, which is mostly private.  If any of them have ever tried it out, or are active users, they are to be commended.)

In the April 28, 2011 decision of Griffin v. State, the Court wrestled with authentication of a MySpace printout. The majority spends a lot of introductory time putting words in quotation marks: “website,” “social networking,” “private,” “blogs” and “profile.” Maybe it’s because they are uncomfortable with those terms. Giving them the benefit of the doubt, I’ll assume they are laying the groundwork for the inevitable future technology opinions by defining them now.

This was a criminal trial, where the defendant’s fiancée put on her MySpace profile the following blurb: “FREE BOOZY [defendant]!!!  JUST REMEMBER SNITCHES GET STITCHES!!  U KNOW WHO YOU ARE!!”

At trial, the prosecution wanted to introduce the statement as evidence of witness intimidation. Instead of attempting to authenticate it through the fiancée (who testified earlier), the prosecution brought it in through a police officer who went to her page and printed out the statement, which was open to the public.

The Court of Special Appeals believed the statement was properly authenticated because the MySpace profile included the fiancée’s birthdate, a picture of her with the defendant and her home city. The CSA relied on Maryland Rule 5-901(b)(4) to authenticate the statement: “Circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.”

The Court of Appeals disagreed, observing that authentication of social networking documents was fraught with peril — the fiancée’s MySpace page could have been faked by someone else; or someone else could have accessed her page and posted the statement without her knowledge.

The CoA also identified other possible methods of authentication: verification from the creator, a search of the creator’s computer, or information directly from the social networking company. Though, it’s hard to see how this solves the whole “someone else accessed my computer” problem.

They also distinguished other cases involving text messages, e-mails and instant messaging because of the private nature of those communications — communication from one person to another. Social networking is a broad form of communication — from one person to many.  Perhaps the outcome would have been different if one of the fiancée’s friends had authenticated the statement.

The dissent, led by Judge Harrell, believed that the statement was properly authenticated, and all the technobabble about passwords and fake pages is more properly directed to the weight of the evidence. They believed that the authentication rule is a very low bar, because 5-901 requires only “evidence sufficient to support a finding that he matter in question is what its proponent claims.”

The standard to be used is whether a reasonable jury could find the evidence to be what it is claimed to be. In essence, Judge Harrell believes that social networking gives the majority the “heebie-jeebies,” which is why they were being overly cautious. He even goes so far as to define heebie-jeebies, which makes the term a little more academic.

I’m going to have to latch onto the Harrell camp with this one. The likelihood of fake pages and tampering is remote, and the defense should be able to raise those concerns or identify others with motive in front of the jury. Authentication is a low standard, a first step toward evidentiary admission.

Given the prevalence of social networking and the unlikelihood of false pages or fraudulent access (though, one could imagine a blockbuster Grisham novel along these lines), authentication should be accomplished through the circumstantial evidence relied upon by the prosecution. But then, that’s not the law in Maryland.

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