Last June I posted about a criminal case in Maryland that raised an interesting question about whether information taken from a social network site could be admitted into evidence. The case involved an allegation that the girlfriend of Antoine Griffin, aka “Boozy,” had intimidated a witness in Boozy’s murder trial. The posting at issue was found on a MySpace profile page for a user named “SISTASOULJAH” and the message carried the following words of wisdom: “JUST REMEMBER, SNITCHES GET STITICHE!! U KNOW WHO YOU ARE!!” The trial court and the intermediate appellate court allowed the evidence to be admitted, based on an investigator’s testimony that the profile belonged to the girlfriend because it depicted a picture of her and Boozy, and because it correctly referenced her birthday. The Maryland Court of Appeals (which is the highest court in Maryland, most states would refer to it as the state Supreme Court), however, found that the page was not properly “authenticated.” Every piece of evidence needs to be supported by some evidence that it is what it purports to be. In most cases, that’s not too hard to establish. A person can testify that an item is one they owned, a car has a VIN number, official records have a distinctive seal. These are all methods for “authenticating” information. But a MySpace profile in itself, doesn’t really have that kind of distinctive characteristics. As the Maryland Court of Appeals noted, “[a]nyone can create a MySpace profile at no cost, as long as that person has an email address and claims to be over fourteen.” So even if the page has all kind of “connections” it doesn’t eliminate the possibility that someone else created it. So authenticating the profile is a little more complicated than Boozy’s prosecutor assumed. Here are some steps the Maryland Court suggests:
• Ask the purported creator if she indeed created the profile and if she added the posting in question.
• Search the hard drive and internet history of the computer of the person who allegedly created the page to determine whether the computer was used to originate the profile and posting.
• Obtain information directly from the social network that links the establishment of the profile to the person that allegedly created it, and which also links the posting to the person who initiated it.
Of course, if the profile creator is accused of a crime, he/she can assert the Fifth Amendment, but the other steps would still be available. The Maryland Court of Appeals sent the case back to the trial court for a do over. It will be interesting to see if the prosecutor can make the case.