Courts around the country have been addressing the issue of whether posts from Facebook, Twitter, etc. are admissible as evidence at trial. This week the Delaware Supreme Court had occasion to face the issue and has decided such posts are admissible as evidence so long as a sufficient foundation is laid. Then it is up to the jury to decide how credible the evidence is and how much weight to give it.
Some states, such as Maryland, have taken the approach that the posts must be authenticated by stringent means such as the admission of a hard drive, an internet history, or testimony of the poster. Other states, such as Texas, have set a much lower bar, which is that any evidence that could convince a reasonable juror to find the post is authentic is good enough to let it in. Delaware now follows the Texas approach, setting a fairly low evidentiary standard for admissibility and letting the jury decide how authentic the post is. As the Court stated, “A trial judge may admit a relevant social media post where the proponent provides evidence sufficient to support a finding by a reasonable juror that the proffered evidence is what the proponent claims it to be.”
In the Delaware case, Tiffany Parker vs. State of Delaware (you can find the Court’s opinion here), the defendant was charged with assault. She got in a fight and then posted about it on Facebook, and then the victim of the assault shared it on her page. The State used the Facebook page and the victim’s testimony to authenticate the posts. The trial court admitted them into evidence, and this week the Supreme Court upheld that decision on appeal.
Our Court’s approach puts the credibility determination where it should be: with the jury. This system has problems, however. Facebook, Twitter and Instagram can be hacked. And it is often fairly easy to get hold of a person’s phone and make a false post. So how can a defendant explain to the jury that she did not make the post? It seems that usually the only way to do it would be to take the stand and testify. That’s fine, unless the defendant wants to invoke her constitutional right not to testify in her criminal trial. That creates a difficult dilemma for the defense.
The lesson here, of course is to be very careful about what you post. Also, change your passwords frequently so that your accounts do not fall into the wrong hands. And if you get into a confrontation, get arrested, or otherwise have a run-in with the law, you should count to 10 before thinking about putting the details out there in the social media universe.
Feel free to contact us to discuss this or any other criminal law issue. Initial consultations are free of charge.