Maryland Court of Special Appeals Reports on Social Networking Websites as Evidence

As stated in our June 30, 2010 blog on Facebook pages used as evidence in family law proceedings, Facebook pages and various other social networking sites such as MySpace are being used as evidence in many legal proceedings. As mentioned, the rules regarding the entry of these pages as evidence are still unclear. In a recent case published by the Court of Special Appeals, Antoine Levar Griffin v. State of Maryland, the Court offers attorneys some guidance on this exact evidentiary issue. The opinion, reported on May 27, 2010 states:

The anonymity features of social networking sites may present an obstacle to litigants seeking to authenticate messages posted on them. See, e.g., Paul W. Grimm et al., Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information, 42 AKRON L. REV. 357, 370-71 (2009). That is the issue we encounter here: whether the State adequately established the author of the cyber message in question. Despite the pervasive popularity of social networking sites and their potential as treasure troves of valuable evidence, Maryland appellate courts have not yet addressed the issue of authenticating anonymous or pseudonymous documents printed from social media Web sites. Notably, neither the Maryland Rules of Evidence nor the Maryland Rules of Procedure specifically address the authentication of such evidence. Perhaps this is because courts that have generally considered the issue of authentication of electronic communications have concluded that they may be authenticated under existing evidentiary rules governing authentication by circumstantial evidence. We see no reason why social media profiles may not be circumstantially authenticated in the same manner as other forms of electronic communication – by their content and context. The inherent nature of social networking Web sites encourages members who choose to use pseudonyms to identify themselves by posting profile pictures or descriptions of their physical appearances, personal background information, and lifestyles. This type of individualization may lend itself to authentication of a particular profile page as having been created by the person depicted in it.

In this particular criminal case, the Defendant was disputing that a MySpace page should be used as evidence because one could not prove that it was the person’s page it purported to be.

If you have questions regarding evidence related to a divorce, custody, or protective order proceeding, contact Monica Scherer, Esq. at 410-625-4740.