"Old wine in a new bottle": Social Media and Authentication (901)
In State v. Green, the court of appeals has given the courts a method to authenticating social media posts. Instead of creating a new rule or attempting to follow other state’s rules, the court has simply explained that Rule 901 is all we need.
What is Rule 901?
Basically in order for something to be authenticated, the proponent must prove that the thing is what it is claimed to be. How does one prove that? Well the rule lays out 10 examples of how someone can prove it. This is a non-exhaustive list. The list includes testimony by a witness, distinctive characteristics, voice ID, and more.
State v. Green
In this murder case, the defendant objected to use of social media messages that allegedly came from him. Using Rule 901, the court went through and explained why the messages were authenticated.
Authentication in general
This is a great opinion that I will need to add to any new edition of my evidence book. It first lays out the rules and purpose of authentication:
“Authentication is a subspecies of relevance, for something that cannot be connected to the case carries no probative force. The trial judge acts as the authentication gatekeeper, and a party may open the gate by laying a foundation from which a reasonable juror could find the evidence is what the party claims.”
Social media is nothing new
The court then explains that social media is nothing new when it comes to authentication:
Applying facts to the case
Finally, the court then applies the facts of the case to several of the methods used in Rule 901 and determines that the messages were authenticated.
Based on this opinion, it appears that when a trial court is confronted with authenticating social media evidence, they should follow the procedures and examples laid out in Rule 901. This does preclude the use of other evidence rules (hearsay, 403, etc.)