Witnesses, plaintiffs and defendants are all on Facebook, Myspace and other social media. It's not just the cool kids, anymore. It's everybody. And every posting, picture, link and message is a potential bit of evidence in your case. Like many of my fellow court lizards, I run every witness, deponent and party through a social media background check (usually done by my social network savvy law clerks). The practice is useful, and it is here to stay.
But how to get any of this information into the record? I want the court or jury to hear that the defendant typed on his girlfriend's MySpace page that "I shouldn't have lied to the bank, but they owed me, big time!" Or, perhaps, I hope to corroborate a witness with her contemporaneous posting that "I saw you dancing at the club, tonight, and you weren't wearing your neck brace. I thought you had an accident? Glad you're all better, dude."
The Maryland Court of Appeals just published a "how to" decision for Maryland lawyers, in Griffin v. State, 419 Md. 343 (2011). The issue came to the court, frankly, because of the absolute slothfulness of the prosecution in preparing this part of its case. It offered only the testimony of a police officer that had logged on to MySpace, and printed the screenshot. Nothing more more than that...really. Let's cruise through the facts, briefly:
- Darvell Guest was shot to death in a bathroom at Ferrari’s Bar in Perryville, in Cecil County, Maryland on April 24, 2005.
- In August of 2006, Antoine Levar Griffin [nicknamed "Boozy"] was tried for the murder of Guest.
- During the 2006 trial, the testimony of Griffin’s cousin, Dennis Gibbs was offered. Gibbs testified that he did not see Griffin pursue Guest into the bathroom.
Perhaps because the eye witness testimony failed to place the defendant in the bathroom, where the victim was shot, the trial resulted in a hung jury.
Griffin was tried a second time in 2008. During the 2008 trial, Mr. Gibbs recanted his prior testimony and claimed that Griffin was, in fact, the only person in the bathroom with Guest during the shooting. Gibbs explained his inconsistent testimony by claiming that Griffin’s girlfriend, Jessica Barber, threatened him prior to the 2006 trial.
To reinforce Gibbs’ testimony that he had been threatened, the State introduced a printout of the girlfriend's MySpace account.
The printout was of the profile for “Sistasouljah” and contained the following information:
- “Female, 23 years old, Port Deposit, Maryland.”
- “Birthday: 10-2-83.”
- “FREE BOOZY!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”
- The printout also contained pictures of persons bearing a resemblance to Barber.
The State offered the testimony of Sergeant John Cook, the lead investigator in the case, to authenticate the printout. When asked how he knew that Barber had posted the material in the printout, Cook responded “I can’t say that.” Over Griffin’s objection, the printout was admitted into evidence.
Griffin was convicted on all counts, and received sentences of twenty and thirty years, to be served consecutively. The conviction was affirmed by the Court of Special Appeals on May 27, 2010, and reversed by the Court of Appeals on April 28, 2011.
The Court gives all Maryland practitioners a roadmap for introducing this evidence. And none of it involves simply printing out a screenshot and handing it to the fact finder while on the witness stand! Let's go through the analysis, now.
Maryland Rule 5-901, which is substantially similar to Fed. R. Evid. 901, outlines a series of non-exclusive ways that evidence may be authenticated. In Griffin, the State sought to authenticate the MySpace printout using Rule 5-901(b)(4), proposing that the pictures, gender, date of birth, town of residence, and reference to the accused were “distinctive characteristics” sufficient to authenticate the printout as being Ms. Barber’s profile.
The Griffin court held that pictures and biographical information on a social networking website were insufficient to authenticate the printout as Ms. Barber’s profile. In its holding, the court emphasized the frequency and ease by which such profiles are improperly created or hacked. The Griffin court established a higher standard for authentication of evidence obtained from social networking websites, as opposed to more traditional electronic mail. In a footnote, the Griffin court noted the difference between online profiles, which are generally broadcast to the public, and e-mails, which are transmitted form person-to-person. The relative insecurity of social network communications demands a stricter rule of evidence.
The Griffin court politely observed that the printout could have been properly authenticated by any of the following methods:
- While the State called Ms. Barber as a witness, it failed to ask her about the printout. Ms. Barber’s testimony, as a person with knowledge of the MySpace profile, would have been sufficient to authenticate the printout under Rule 5-901(b)(1).
- Additionally, the State could have searched Ms. Barber’s computer to examine the internet history and hard drive to determine whether the posting had originated from her computer.
- Finally, the State could have subpoenaed information regarding the profile from MySpace directly.
And there it is, a roadmap. Make it yours, incorporate it into your standard deposition, witness and trial prep, and I'll see you in court!