Is social media good or bad? Is it the best way to communicate or the worst? It is, of course, neither and both. Never before have non-celebrities or non-journalists been able to reach millions and display what would otherwise be undiscovered talent. And yet we also find material on social media that falls short of most bathroom stall graffiti standards. Consuming social media is like ordering the seafood tower at a new restaurant. If that first bite of shrimp is warm, leave the plate alone and focus on the dinner rolls.
Regardless of its merit, social media is here to stay and disputes over admissibility or exclusion are commonplace in today's trials. To best handle evidentiary questions about social media, litigators must understand the relevant evidentiary rules and their application.
What Social Media Evidence?
Starting with the obvious, information on social media certainly is evidence. In California, evidence is comprehensively defined to include "testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." Cal. Evid. Code § 140. "Writing" is broadly defined to include "every other means of recording upon any tangible thing, any form of communication or representation, including ... any record thereby created, regardless of the manner in which the record has been stored." The Federal Rules of Evidence likewise define "writing," "recording," and "photograph" in an expansive way. Bottom line: Anything on social media—whether it's a 140-character tweet or a wordless Tik-Tok video—is evidence as defined in California and federal law.
Is Social Media Evidence Relevant?
Like any evidentiary question, the first question is whether the potential evidence is relevant. California Evidence Code section 210 defines relevant evidence to “mean evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Cal. Evid. Code § 210. Evidence is relevant if it has some tendency, even a slight tendency, to prove or disprove an issue in the case. See e.g., People v. Carpenter, Cal.4th 1016, 1048 (1999); see also e.g., Dorth v. Fowler, 588 F. 3d 396, 401 (6th Cir. 2009) (“[A] piece of evidence does not need to carry a party’s evidentiary burden in order to be relevant; it simply needs to advance the ball.”). Asking whether "social media" evidence is relevant is like generically asking whether "testimony" is relevant. There is nothing inherent in social media evidence that provides any special rules in favor or against a finding of relevancy.
Is Social Media Evidence Authentic?
When it comes to authenticating writings or documents (or photographs or recordings), lawyers tend to make things unnecessarily difficult. Whether it's a deposition or trial testimony, lawyers tend to think that laying a foundation for a document requires a long and tedious windup of meaningless and repetitive questions. Authenticating documents (social media documents or otherwise) does not need to be overly complicated. To understand the simplicity of authentication, it is important to first understand exactly what authentication means.
The concept of authentication is closely related to relevance—or, more specifically, conditional relevance. For example, Federal Rule of Evidence 104 states the following:
When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
Rule 901, which identifies the requirements to authenticate evidence, includes similar language:
To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
Suppose, for example, a plaintiff sued his neighbor for allegedly driving his red truck across (and damaging) the plaintiff's front lawn on New Year's day. The defendant denies liability on the ground that he (and his truck) spent the New Year's holiday visiting the Grand Canyon. The defendant offers into evidence an undated photograph of himself standing beside his truck overlooking the Grand Canyon. Is the photograph relevant? Unless there is some evidence that the photograph was taken on January 1st, it proves nothing about the defendant's whereabouts on the day in question. The photograph would likely excluded because it's irrelevant.
But suppose the defendant testifies that the photograph was taken on New Year's day. The defendant has offered testimony that makes the photograph relevant. Is it now admissible? What about authenticating the photograph itself? Doesn't the defendant need the photographer? What about a chain of custody? Is an expert witness required to show that the camera that took the photograph was in good operating condition? Attorneys often assume that authenticating a writing is a significant task—that there is some terrifyingly strict standard to authenticate writings, photographs or recordings. To understand how simple it is, it is important to understand exactly what the rules require. As mentioned earlier, Federal Rule of Evidence 901 requires that the proponent of the writing "produce evidence sufficient to support a finding that the item is what the proponent claims it is." California has the same standard: "Authentication of a writing means ... the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is[.]" Cal. Evid. Code § 1400. This "sufficient to sustain a finding language" means that the judge does not decide whether he or she is persuaded that the document is what the proponent claims it is, but rather whether a reasonable jury could do so.
Returning to our New Year's hypothetical, the defendant could simply testify: "This is a photograph that was taken of me on New Year's day at the Grand Canyon." This testimony could be "sufficient to sustain a finding" that the photograph is what the defendant claims it to be (i.e., a photograph of the defendant taken on New Year's Day). Thus, the photograph has been authenticated and would be properly admitted into evidence. But what if the plaintiff called a witness to dispute the photograph? This witness testifies that defendant told this witness "I have never been to the Grand Canyon. And on January 1st, I drove across my neighbor's lawn." Is the photograph still authenticated? We have conflicting testimony, but could a jury believe the defendant and not the plaintiff's witness? In other words, is the defendant's testimony (if believed) "sufficient to support a finding" that the photograph is what he claims it is? Yes, such conflicting testimony goes to the weight of the evidence, not its admissibility. See e.g., McAllister v. George, 73 Cal. App. 3d 258, 261 – 263 (1977).
California's Evidence Code identifies a number of ways in which a writing can be authenticated. It can be done by introducing evidence that the party against whom the writing is offered previously admitted or acted as though the writing was authentic. Cal. Evid. Code § 1414. A writing can be authenticated by the content itself, by the proponent introducing "evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing." Id., § 1421. Even with various examples of establishing authenticity, California's Evidence Code expressly states that "[n]othing in this article shall be construed to limit the means by which a writing may be authenticated or proved." The Federal Rules of Evidence likewise provide examples of how evidence may be authenticated, but Rule 901 states that it is "not a complete list[.]"
When it comes to social media, the same authentication rules apply. Whether the evidence is a written message, photo, or video, the proponent of the evidence has to make a sufficient showing that the evidence is what it is claimed to be. An example of this is found in People v. Valdez, 201 Cal. App. 4th 1429 (2012). In Valdez, the defendant Vincent Valdez was convicted of attempted murder, and his sentence was extended for gang enhancements. During trial, the prosecutor introduced pages from, what appeared to be, Mr. Valdez's MySpace page. The page included photographs and written notations showing Mr. Valdez's affiliation with gangs and violence. Id. at 1433 - 1434. On the page's "interest" section, Mr. Valdez purported to write that he enjoyed "Mobbing the streets and hustling, chilling with homies, and spending time with my mom." Id. at 1434. An investigator for the prosecution testified that he printed the pages a year prior to the attempted murder when he was doing Internet searches for individuals associated with local gangs. Id. The investigator explained that a person's MySpace pages were "accessible publicly without a password, but only the person who has created that MySpace profile, or a person who has a password for the page, may upload content to it or manipulate images on it." Id. The investigator further admitted that "he did not know who uploaded the photographs or messages on Valdez's page, who created the page, or how many people had a password to post content on the page." Id. The trial court admitted the MySpace page for the limited purposes of (1) corroborating a victim's testimony that he recognized Valdez from the MySpace site, and (2) the prosecutor's gang expert, who relied on the evidence as a basis for the opinion that Mr. Valdez was an active gang member.
After his conviction, Valdez appealed the court's admission of the MySpace evidence. The Court affirmed, and the Court reiterated the standard for authenticating evidence: "[T]he fact that the judge permits a writing to be admitted in evidence does not necessarily establish the authenticity of the writing; all that the judge has determined is that there has been a sufficient showing of the authenticity of the writing to permit the trier of fact to find that it is authentic." Id. at 1434 - 1435. The Court explained that "like any other material fact, the authenticity of a document may be established by circumstantial evidence." Id. at 1435, citing Chaplin v. Sullivan, 67 Cal. App. 2d 728, 734 (1945). The Court reiterated that there was nothing special about social media evidence, but instead the same authentication rules applied: "The author's testimony is not required to authenticate a document (§ 1411); instead, its authenticity may be established by the contents of the writing (§ 1421) or by other means (§ 1410)[.]" Id. at 1435. Valdez was "free to argue" that the pages were not authentic, but regardless "a reasonable trier of fact could conclude from the posting of personal photographs, communications, and other details that the MySpace page belonged to him." Id.
A similar result can be found in In re KB, 238 Cal. App. 4th 989 (2015). In KB, the Court reviewed another criminal conviction where photographs uploaded to Instagram were admitted in evidence. An officer had been using Instagram to follow various criminal suspects. Id. at 992. When the officer saw photos posted online of the defendant holding firearms inside an apartment, he confirmed his address and probationary status (i.e., the defendant was not allowed to possess firearms). Id. The defendant was arrested wearing clothing and in an apartment that matched the photos that were posted online. Id. The defendant argued that admitting the photographs was in error because there was no testimony from anyone who actually took the photograph or actually uploaded the picture to Instagram. The Court rejected the argument: "The evidentiary foundation 'may—but need not be—supplied by the person taking the photograph or by a person who witnessed the event being recorded.' In addition, authentication may be supplied by other witness testimony, circumstantial evidence, content and location' and other means provided by law[.]" Id. at 293, citing People v. Goldsmith, 59 Cal. 4th 258, 268 (2014).
Typical Evidentiary Analysis
Assuming the social media evidence is relevant and authentic, the evidence should be analyzed like any other piece of evidence. There may be hearsay challenges or other reasons to exclude the evidence (such as improper character evidence or privacy issues). These issues have been covered in prior articles, for example, here and here.
The above rules are important and can help litigators and trial lawyers handle admissibility questions related to social media. If the above article was helpful, be sure to share it ... on your favorite social media platform.
David Sugden is a shareholder at Call & Jensen in Newport Beach, California.
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