On February 5, 2014, the state of Delaware became the next state to rule on the standard for admissibility of evidence of a Facebook “post” at a criminal trial. The Delaware Supreme Court ruled in Parker v. Delaware that evidence of a Facebook post should be admitted at trial so long as a jury could reasonably conclude, based on the evidence presented, that the post was in fact made by the proffered author.
In Parker, the defendant Tiffany Parker was indicted on one count of second-degree assault and one count of terroristic threatening after a series of Facebook messages led to an altercation between Parker and another woman. Parker claimed that she was acting in self-defense, but the State sought to introduce evidence of Facebook posts made following the incident that suggested otherwise. According to the court’s opinion, there were three posts total, with statements such as “bet tht [sic] bitch didn’t [sic] think [I] was going to see her ass…bet she wont [sic] inbox me no more, #caughtthatbitch.” To authenticate the evidence, the State presented testimony from Parker’s alleged victim as well as circumstantial evidence.
Parker argued that the Delaware court should adopt the approach taken by the Maryland Court of Appeals in Griffin v. State to authenticate this type of social media evidence. The Maryland approach requires that social media evidence “be authenticated through the testimony of the creator, documentation of the internet history or hard drive of the purported creator’s computer, or information obtained directly from the social networking site.” Parker v. Delaware, No. 38, 2013, 2014 WL 621289 (Del. Feb. 5, 2014). If the trial judge does not believe that the proponent has shown the authenticity of the document using these exact requirements, the evidence in question will not be admitted at all and the jury would be unable to use it when making factual determinations. The proponent must be able to convince the judge, rather than the jury, that the post was not somehow falsified or created by another individual.
Alternatively, the State argued that the Delaware court should adopt the Texas approach, under which a proponent can authenticate social media evidence using any type of evidence so long as he or she can demonstrate to the trial judge that a jury could reasonably find that the proffered evidence is authentic.” Parker, No. 28, 2014 WL 621289. The Delaware court’s opinion noted that the Texas approach offered a “lower hurdle” because the jury, rather than the judge, was left to make conclusions about the facts.
Ultimately, the Delaware Supreme Court held that the Texas approach best conformed to the Delaware Rules of Evidence (specifically Rules 104 and 901), concluding that “[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.”
Critics to this approach note the obvious problems – namely, that social media outlets like Facebook, Twitter and Instagram can be hacked, or easily accessed by using another individual’s computer of cell phone. A defendant is then left to explain to a jury that he did not in fact make the posts in question; however, this would usually require that he actually take the stand and testify. Such a situation becomes more problematic because it would inherently require the defendant to waive his 5th Amendment rights to prove that he did not create the post himself.