Admitting Social Media Evidence Not As Easy As It Looks

I don’t really write this blog for lawyers. My goal has always been to appeal to a broader audience with better manners (Kidding. Sort of). But this is one of those times where the content is a little more lawyer centric. So bear with me.

Here’s a post from Brian Wassom’s excellent blog  on the subject of how to convince a court to admit social media evidence. In this case, Brian shows off his superior delegation skills by having summer associate Scott Milligan write the article. 

The question of how to admit social media evidence is one that once again attempts to apply old rules –in this case the rules of evidence – to new media. And what is the question exactly? Simply this – a party who seeks to introduce a piece of evidence has to show that it is what it purports to be. Here’s a simple example – in a rear end collision case I want to introduce a photo of the damage to my client’s car. To do so, I have to put on a witness who can say “yes, that’s my car and the photo is an accurate depiction.” I can’t just hand the photo over to the judge or jury.

So put that basic rule in the context of social media. And stick with the rear end collision case. Let’s assume that the following is posted on the defendant’s Facebook wall (and just for fun, let’s assume he’s a Michigan graduate and a St. Louis Cardinals fan): “Prolly shouldn’t drive after 6 maize and blue Jello shots.  Really bashed into a car on I-75 last week. Go Cards!”     

That would be some sweet evidence, right? But don’t assume that you can just print it off and have it admitted. You’ll have to present some evidence that the defendant himself posted the comment. It is possible that the defendant will admit that he wrote it (all evidence suggests that he is not the sharpest tool in the shed), but if he denies it, your task gets a little trickier.   

Without stealing the thunder from Scott’s blog, courts want to see some characteristics that make it more likely than not that the defendant posted the content – are there speech patterns unique to the defendant in the post? Is there information that only the defendant would know? 

Social media posts can be powerful evidence – but only if the court will admit them.  The rules may be old but they still apply!