By Michael J. Hutter, New York Law Journal

Facebook is an extremely popular form of social media.1 After registering to use the site, a user can create a profile, post status updates, photos or videos, and exchange messages with other users. These posts will frequently consist of intimate details of their personal lives. Through privacy controls, these posts can be viewed by anyone accessing the user’s site, or limited to the user’s friends.

As a result of their nature, Facebook posts can be a veritable treasure trove of evidence usable at a trial, civil or criminal. Furthermore, they are accessible. A New York State Bar Association Ethics Opinion provides that it is permissible for an attorney to access an adversary party’s public postings2; and New York courts have increasingly permitted access to a party’s private postings upon a proper showing.3

Is the information obtained now admissible? Less than 20 years ago, the answer in some courts was “no,” as courts viewed such evidence as consisting of nothing more than “voodoo information.”4 This conclusion was based upon a fear that such information was inherently unreliable due to the possibility of the creation of false Facebook sites or the posting of false messages by a “hacker.” This restrictive view has given way to recognition that Facebook evidence may be admissible upon a proper foundation.

While some courts are “demanding [for admissibility] that the proponents of evidence obtained from electronically stored information pay more attention to the foundation requirements than has been customary for introducing evidence not produced from electronic sources,”5 other courts have rejected such an approach. As stated by the U.S. Court of Appeals for the Second Circuit in a recent decision, United States v. Vayner, 769 F.3d 125, 131, n. 5 (2d Cir. 2014): “[While] some courts have suggested applying ‘greater scrutiny’ or particularized methods for the authentication of evidence derived from the Internet due to a ‘heightened possibility of manipulation,’…we are skeptical that such scrutiny is required….”

This column will address the four major evidentiary hurdles—relevance, authentication, hearsay, and best evidence—that must be overcome to admit Facebook posts claimed to be posted by the owner, whether it be the profile page, or a posted message, photograph or video, when offered against the claimed owner. These traditional rules apply as equally to Facebook posts as they do to other types of evidence in determining admissibility. In view of the present paucity of New York cases, discussion will involve citation to decisions from the federal courts and other state jurisdictions which have applied these rules to Facebook such posts. These decisions, as they apply rules that are followed by the New York courts, will have strong precedential value in the New York courts.6

Relevance

The overarching evidence rule governing all offered evidence is the rule of relevancy—only relevant evidence is admissible.7 Evidence is relevant “if it has any tendency in reason to prove the existence of any material fact.”8 This definition is very expansive as a minimal probative tendency of establishing a material fact is all that is required.9

Keeping in mind the likelihood that parties in an action have set up a Facebook page and that they have posted vast amounts of personal information about what they have been doing, it is inevitable that some of the posts will have a connection with the underlying action and will be relevant under the expansive test of relevancy. A review of the reported cases confirms this observation.10

Authentication

As a general proposition, before a party can introduce relevant non-testimonial evidence, the party must demonstrate that the evidence is what the party claims it to be, i.e., the party must authenticate the evidence. This authentication requirement, as applied by the New York courts and all other jurisdictions, is satisfied by evidence sufficient to support a finding that the offered evidence is what the party claims.11 Notably, the party is not required to eliminate all possibilities of the evidence being fraudulent.12 Whether the evidence is in fact authentic will then be an issue for the trier of fact.

The traditional authentication rules apply to Facebook posts, whether such posts consist of a profile page entry, message, photograph or video. These rules are, however, adjusted somewhat to accommodate the uniqueness of posts on Facebook. Parties offering such evidence must be prepared to establish three authentication foundation facts: (1) what actually appeared or was displayed on the Facebook site; (2) who owns the site; and (3) where the evidence consist of written posts on the site, is the authorship of the posts attributable to that owner; or where the evidence consists of a photograph or video, is it a fair and accurate representation of what the scene depicted at the claimed time.13

As to the first foundation fact, it can be established through the marking as an exhibit a printout of the post from the site, accompanied by testimony of a witness that he or she accessed the site through their computer or other device by typing the URL associated with the site; read what appeared on the computer screen; and upon reviewing the exhibit testifies that the printout accurately reflects what was on the screen.14 Where a printout of the screen display is not available, testimony of the witness stating what the witness observed on the screen will suffice.15 As this discussion indicates, there is no need to call a representative of Facebook to satisfy this element of the foundation.

Merely accessing the site and establishing what was observed on the screen, however, is not enough to authenticate the post. The second foundation fact of ownership must be addressed. This point was made clear by the Second Circuit in Vayner, 769 F.3d 125, supra. In this criminal prosecution, evidence vital to the government’s case, consisting of a printout of a web page which was claimed to be defendant’s profile page from a Russian social networking site akin to Facebook, was admitted. The trial court had admitted the evidence, simply stating the page was “defendant’s Facebook page.” Id. at 128.

The Second Circuit held the printout was erroneously admitted due to the absence of any foundation proof establishing that the site from which it came was in fact a site set up by defendant himself. Id. at 131. The court noted that while the page had defendant’s name and photograph on it, that was insufficient to establish defendant had created the site.

Given the ability of a person to easily set up a Facebook page using someone else’s name, how then can the party offering the printout establish that the site was owned by the person claimed to own it? An admission of ownership by that person is, of course, one way to do so. In the absence of an admission, resort to expert proof derived from a forensic review of the person’s computer will do. Alternatively, the use of circumstantial evidence to connect the site to the claimed owner should be considered.

The use of circumstantial evidence to establish authenticity is a recognized method of authentication.16 Examples of this rule as applied to establishing ownership would include the distinctive character of the contents of the site that corresponds to known information about the claimed owner, or pedigree information on the site that only the owner would know; testimony of a witness that the witness frequently communicated with the owner through the site and received reply messages; and the sharing of the site’s password with other persons. As such evidence certainly links the site to the claimed owner, courts accept its use to establish ownership, as the Vayner court expressly acknowledged. Id. at 132.

When the offered evidence consists of a written post on the site, and it is claimed the owner made that post, the third foundation fact becomes operative, namely, it is necessary to attribute the post to the owner, i.e., the owner made the post.17 The obvious reason is that the post could have been made by a hacker. Notably, the proponent of the offered post does not have to disprove the existence of a hacker.

The foundation methods for linking the post with the owner are similar to the ownership methods discussed above. The most frequently involved method will be the use of circumstantial evidence. Such evidence can be: “(1) the consistency of the offered message with another message or posting made by the alleged author; (2) the author’s awareness of the conduct in question as shown in the details of the message; (3) the message’s inclusion of similar requests that the alleged author had made via phone or other communication during the relevant time period; and (4) the message or posting’s reference to a little-known nickname or other intimate piece of knowledge.”18 These views have been utilized by the courts.19

Where the post consists of a photograph or video, such as a YouTube video, the usual foundation requirement as applied to such items in a non-Facebook setting is applied. All that needs to be shown is that the photograph or post is a fair and accurate representation of the depicted scene(s) at the claimed time.20 This can be established by a person(s) who has personal knowledge of the scene or even by circumstantial evidence.21 It is not necessary to call the photographer or videographer.

Hearsay

As to the hearsay rule, a Facebook owner’s written post when offered for the truth of what it asserts will constitute hearsay, just like all other writings. Thus, an exception to the hearsay rule must be found in order to admit it. Ordinarily, where that post is inconsistent with the position the owner has taken at trial, the admissions exception will be applicable.22 If the post is offered for a relevant non-hearsay purpose, e.g., impeachment, it will also be admitted.23

Where the post is a photograph or video, the hearsay rule is not implicated because they are generated by machines. The hearsay rule covers only assertions made by a person.24

Best Evidence

New York’s best evidence rule requires that when a party seeks to prove the contents of a writing, photograph or recording, it must produce the original thereof, or explain its absence before secondary evidence of its contents may be admitted.25 The original of a post on Facebook is, technically, the post as saved on the hard drive of the computer.

Notably, FRE 1001(d) provides that “[f]or electronically stored information, ‘original’ means any printout or other output readable by sight—if it accurately reflects the information.” In essence, any accurate printout of the electronic data in issue qualifies as an “original,” under the federal rule. Although New York has no comparable statutory provision governing a non-business setting, there is no principled reason why a New York court would not follow the federal rule rather than demand the production of the hard drive.

Conclusion

Admissibility of Facebook posts is not overly difficult to achieve as all that is involved is the application of traditional evidentiary rules albeit to a different medium. Nonetheless, the attorney should upon identification of the particular Facebook post sought to be admitted, carefully think through the three foundation issues involved and be prepared to establish the requisite foundation.

1. “Social media,” a relatively new term dating back only to 2004, is generally considered to be a defined form of electronic communication.

2. See, NYSBA Opinion 843 (Sept. 2010).

3. See, e.g., Forman v. Henkin, 134 A.D.3d 1529 (1st Dept. 2015) (allowing discovery); compare, McCann v. Harleysville Ins. Co. of N.Y., 78 A.D.3d 1524, 1525 (4th Dept. 2010) (denying discovery).

4. St. Clair v. Johnny’s Oyster & Shrimp, 76 F.Supp.2d 773, 775 (SD Tex. 1999).

5. People v. Johnson, 2015 NY Slip Op. 25431, *4 (Co. Ct. Sullivan Cty.) (Labuda, J.), quoting Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 543 (D Md. 2007). (Grimm, M.J.).

6. While the discussion will involve Facebook, it is equally applicable to other social media sites such as LinkedIn, MySpace and Twitter.

7. See, People v. Scarola, 71 N.Y.2d 769, 777 (1988).

8. Id. at 777.

9. See, e.g., People v. Yazeem, 13 N.Y.2d 302, 304 (1964).

10. See, e.g., Johnson v. Ingalls, 95 A.D.3d 1398, 1400 (3d Dept. 2012) (photograph of plaintiff probative on issue of her alleged injuries); People v. Clevestine, 68 A.D.3d 1448, 1450-1451 (3d Dept. 2009) (inculpatory messaging by defendant).

11. See, Barker and Alexander, Evidence in New York State and Federal Courts (2d ed) §9:1.

12. See, United States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir. 2004).

13. See, O’Connor v. Newport Hosp., 111 A.3d 317, 324 (R.I. 2015); Joseph, “What Every Judge and Lawyer Needs To Know About Electronic Evidence,” 99 Judicature 49, 50 (2015).

14. See, Toytrackerz LLC v. Koehler, 2009 WL 2591329, at* 6 (D. Kan.); People v. Junior, 119 A.D.3d 1228, 1231 (3d Dept. 2014).

15. See, Schozer v. William Penn Life Ins. Co., 84 N.Y.2d 639, 645 (1994).

16. See, Barker, supra, §9.9.

17. Id.

18. Raysman and Brown, “Authentication of Social Media Evidence,” NYLJ, Nov. 8, 2011, p. 3, col. 3.

19. See, e.g., United States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000).

20. See, Barker, supra, §9:3.

21. See, Blair v. DiGregorio, 132 A.D.3d 1375 (4th Dept. 2015) (video); United States v. Bloomfield, 591 Fed. Appx. 847, 851-852 (11th Cir. 2014) (YouTube).

22. See, Lorraine, 241 F.R.D. at 564-565; Bethel v. Howard, 95 A.D.3d 1489 (3d Dept. 2012).

23. See, In re K.W., 666 S.E.2d 490, 494 (N.C. 2008) (post admissible as prior inconsistent testimony to impeach trial testimony).

24. See, People v. Stultz, 284 A.D.2d 350 (2d Dept. 2001)(caller ID); People v. Goldsmith, 326 P.3d 239, 249 (Cal. 2014)(digital photograph).

25. See, Barker, supra, §10:1.

IMAGE: Michael J. Hutter

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