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Md. high court sets admissibility standard for Facebook ‘unfriending’

Judge Shirley Watts wrote the opinion for the unanimous Court of Appeals. (File photo)

Judge Shirley Watts wrote the opinion for the unanimous Court of Appeals. (File photo)

Maryland’s top court has unanimously reinstated an attempted armed robbery conviction, saying the trial judge properly allowed the jury to hear damning evidence that the defendant “unfriended” from his Facebook page his alleged accomplice just hours after that person was killed trying to rob a Towson liquor store.

In its 7-0 decision, the Court of Appeals said an intermediate court erroneously overturned Hayes Sample’s conviction because the state did not present an expert or eyewitness to show that Sample was the person who had unfriended Claude Mayo. Without such a showing, or “authentication,” the evidence could not be presented to the jury, the intermediate Court of Special Appeals ruled last year.

But an expert or eyewitness is not necessary because a “reasonable juror” could conclude based on the circumstances that it was more likely than not that the Facebook page owner was the person who did the unfriending, the Court of Appeals ruled Monday.

The circumstantial evidence in Sample’s case was that the user of his SoLo Haze Facebook profile unfriended Mayo’s claude.mayo.5 Facebook profile, the high court said.

“Put simply, there is no evidence that anyone other than Sample ever had access to the SoLo Haze profile, much less that someone other than him used the profile to unfriend the claude.mayo.5 profile,” Judge Shirley M. Watts wrote for the court.

“Requiring the state to somehow conclusively disprove that someone other than Sample was responsible for the unfriending would establish too high a standard for authenticating social media evidence,” Watts added. “The state was not required to eliminate all possibilities that were inconsistent with authenticity, or prove beyond any question that Sample was the one who used the SoLo Haze Facebook profile to unfriend the claude.mayo.5 Facebook profile. Instead, the state need to prove only that there was sufficient evidence for a reasonable juror to find by a preponderance of the evidence, i.e. that it was more likely than not, that Sample was responsible for the unfriending.”

The Maryland attorney general’s office hailed the ruling in a statement Wednesday.

“By confirming that the standard for the authentication of evidence derived from social media contemplates proof by a preponderance of the evidence, the court’s decision ensures that the ultimate responsibility for resolving authenticity disputes will remain, appropriately, the prerogative of the jury as the finder of fact,” the office stated.

Mayo was shot and killed by a clerk at Towson Wines & Spirits during Mayo’s botched two-man robbery of the store on Dec. 7, 2015. The second man escaped but was later identified as Sample via surveillance footage and phone records, according to the prosecution.

Investigators also accessed Sample’s Facebook page, which the state said revealed he had unfriended Mayo the day after the robbery attempt.

Prosecutors sought to introduce the unfriending at trial to show Sample’s consciousness of guilt and to rebut his pretrial statements that he did not know Mayo.

Sample’s defense counsel sought to suppress the unfriending, saying the state had failed to show Sample had exclusive access to his profile page. But the Baltimore County Circuit Court judge said the evidence should be introduced because a reasonable juror could conclude that Sample did the unfriending.

In addition to attempted armed robbery, Sample was found guilty of first-degree assault, use of a firearm in a violent crime and illegal possession of a firearm. He was sentenced to an aggregate term of 50 years in prison.

The Court of Special Appeals overturned the conviction, prompting the state to seek review by the high court.

The Court of Appeals rendered its decision in State of Maryland v. Hayes Sample, No. 54 September Term 2019.

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