Commercial Litigation and Arbitration

Admissibility of Evidence from Non-Party’s Pseudonymous Profile on Social Networking Site

From Griffin v. State, 2010 Md. App. LEXIS 87 (Ct. App. May 27, 2010):

I. Did the trial court err in admitting a page printed from a MySpace profile alleged to be that of appellant's girlfriend? ***

In the early morning hours of April 24, 2005, Darvell Guest was cornered, unarmed, in the women's bathroom of Ferrari's Bar in Perryville, where he was brutally shot seven times. Appellant was charged with the murder. Griffin's first trial was held in August 2006. At that trial, Dennis Gibbs, appellant's cousin and an eyewitness to Guest's murder, testified that he did not see appellant pursue the victim into the bathroom with a gun. The trial ended in a mistrial.

At appellant's second trial in January 2008, several witnesses testified that they saw appellant with a handgun just before the shooting, and others testified that they witnessed appellant pursue Guest into the women's bathroom, where appellant fired his weapon. Gibbs testified that appellant was the only person, other than Guest, in the bathroom when the shots were fired. According to Gibbs, another cousin, George Griffin, was standing "right with me" during the shooting and did not enter the bathroom. He explained the discrepancy in his testimony at the two trials, claiming that Jessica Barber, appellant's girlfriend, had threatened him prior to the first trial. Thereafter, the court permitted the State to introduce into evidence a redacted printout obtained in December 2006 from a MySpace profile page allegedly belonging to Ms. Barber. The profile page, introduced for the limited purpose of corroborating Gibbs's testimony, said, in part: "JUST REMEMBER, SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" ***

Appellant contends that the court erred in admitting the MySpace evidence. He complains that the evidence was not properly authenticated and that its prejudicial effect outweighed its probative value.***

On the day after Ms. Barber testified, the prosecutor sought to introduce five pages printed on December 5, 2006, from an Internet Web site for a MySpace profile in the name of "SISTASOULJAH," who was described on that Web page as a 23 year-old female from Fort Deposit. The profile page listed the member's birthday as "10-2-83." It also contained a photograph posted next to the description, showing a "three-quarter view" of an embracing couple. Counsel and the court agreed that the couple appeared to be appellant and Ms. Barber. A "blurb" posted on the profile stated as follows:


The State offered the printout to rehabilitate Gibbs's credibility, and to bolster Gibbs's claim that Ms. Barber had threatened him [orally] before the first trial. Defense counsel objected, arguing that the State had not sufficiently established a "connection" to Ms. Barber, and had failed to question her about the MySpace profile. In response, the prosecutor asserted that the profile could be authenticated as belonging to Barber through the testimony of Sergeant John Cook, the Maryland State police investigator who printed the document.

The trial court then allowed defense counsel to voir dire Sergeant Cook, outside the presence of the jury. The following transpired:

[DEFENSE COUNSEL]: How do you know that this is her web page? . . .

[SGT. COOK]: Through the photograph of her and Boozy on the front, through the reference to Boozy, to the reference of the children, and to her birth date indicated on the form.

[DEFENSE COUNSEL]: How do you know she sent it?

[SGT. COOK]: I can't say that.

Sergeant Cook acknowledged that he could not determine when any particular posting was made. But, he indicated that he visited the Web site on December 5, 2006, the date that appeared on the printout.

The court ruled that it would admit a single, redacted page from the MySpace printout, containing only the photo next to a description of the page creator as a 23 year-old female from Fort Deposit, and a portion of the blurb, stating: "FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" ***

As indicated, this case involves a profile posted on a social media networking site, MySpace. Such Web sites, which include Facebook, LinkedIn, Plaxo, and Twitter, are increasingly popular vehicles for the dissemination of personal information posted on individualized profiles. Social media Web sites offer users multi-faceted avenues to "network" with fellow users, along with control over the content of their profiles. The Court of Appeals explained in Independent Newspapers, Inc. v. Brodie, 407 Md. 415, 424 n.3 (2009): "Social networking sites and blogs are sophisticated tools of communication where the user voluntarily provides information that the user wants to share with others. . . . The user can choose what information to provide . . . ." Moreover, the Brodie Court recognized that these Web sites offer users the opportunity to post messages for the world to see, as well as the option "to tightly control the dissemination of [posted] information." ***

Typically free to users, social networking sites "can serve as an online newsletter or as a personal journal — where an individual can post concerns, ideas, opinions, etc. — and it can contain links to web sites or can use images or video." But, in the absence of limitations imposed by the user, "whatever is posted [is] available to the world at large." Moreover, the development of Web sites like YouTube allows users to upload streaming video, so that personal statements may be recorded and disseminated. Thus, such online networking communities have led to an expanding universe of shared information, and have been aptly characterized as "soda fountains for the twenty-first century." See, e.g., John S. Wilson, MySpace, Your Space, or Our Space? New Frontiers in Electronic Evidence, 86 OR. L. REV. 1201, 1219-24 (2007) (reviewing the history of social networking sites). ***

The MySpace profile at issue here illustrates that a user "can choose not to provide" the user's real name. *** Instead, users may join the online community anonymously, by registering under password and user names that are self-selected and confidential. Access to the profile may be obtained by logging in on the Web site with the confidential user name and password. Other social networking site features preserve the veil of anonymity or pseudonymity, by allowing members to communicate electronically using their chosen screen names, both via private message sent to other members, as an alternative to traditional e-mail in which "users generally know with whom they are communicating[,]"***, and via an "in-house" instant messaging option that allows members to conduct real-time "chats" with other members, by use of their screen names. ***

In Brodie, 407 Md. at 419, the Court held that a company that commissioned an Internet forum allowing participants to post messages under screen names could not be required to identify those participants in the circumstances of that case. ***

We have found only a handful of reported cases involving evidence specifically pertaining to social networking Web sites. See, e.g., A.B. [v. State[, 885 N.E.2d 1223, 1224 (Ind. 2008)] (holding that a juvenile's profane messages criticizing disciplinary actions taken by her former school principal, which she posted on her MySpace profile and on a MySpace group page, were protected political speech); In re K.W., 666 S.E.2d 490, 494 (N.C. Ct. App. 2008) (concluding that victim's statements on her MySpace profile were admissible as prior inconsistent statements to impeach her testimony, but that exclusion was harmless error); In re T.T., 228 S.W.3d 312, 322-23 (Tex. Ct. App. 2007) (involving a termination of parental rights proceeding, in which the court considered a father's statement on his MySpace profile that he did not want children). Our research reveals only one reported decision directly resolving an authentication challenge to evidence printed from a social media Web site. However, it involved a printout of MySpace instant messages rather than a MySpace profile page, and was authored by a trial court; we have not found a reported appellate decision addressing the authentication of a printout from a MySpace or Facebook profile. In Ohio v. Bell, 882 N.E.2d 502, 511 (Ohio C.P. 2008), aff'd, No. CA2008-05-044, 2009 Ohio App. LEXIS 2112 (Ohio Ct. App. May 18, 2009), the trial court denied a defense motion to exclude printouts of MySpace instant messages alleged to have been sent to a victim by the defendant under his MySpace screen name. It pointed to the dearth of authority on the "important issue" of authenticating printouts of electronic communications. Moreover, it was not persuaded by the defense complaints "that MySpace chats can be readily edited after the fact from a user's homepage" and that, "while his name may appear on e-mails to T.W., the possibility that someone else used his account to send the messages cannot be foreclosed." *** The trial court emphasized that the evidence required to meet the authentication threshold for admissibility "is quite low — even lower than the preponderance of the evidence," and observed that "[o]ther jurisdictions characterize documentary evidence as properly authenticated if 'a reasonable juror could find in favor of authenticity.'" Id. at 512 (citing United States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir. 2004)).

After reviewing the evidentiary proffers, the court concluded that the MySpace chat logs could be authenticated "through [the alleged victim's] testimony that (1) he has knowledge of defendant's . . . MySpace user name, (2) the printouts appear to be accurate records of his electronic conversations with defendant, and (3) the communications contain code words known only to defendant and his alleged victims." *** Moreover, the court held that "evidence of electronic conversations between defendant and the alleged victims would be relevant under Evid.R. 40" and that, "[u]pon testimonial development of the 'code language' at issue, the probative value of these messages would outweigh any prejudicial effect." ***

Bell is consistent with other decisions affirming the admission of transcripts of chat room conversations on the basis of similar authenticating testimony by the other party to the online conversation. See, e.g., United States v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009) (Internet chat logs of correspondence between defendant and police contractor posing as minor were adequately authenticated through contractor's testimony); United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007) (concluding that chat room logs were authenticated as having been sent by defendant through testimony of persons who participated in the online conversations); United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000) (concluding that content of conversation was sufficient to link defendant to user name on chat room log printouts); State v. Glass, 190 P.3d 896, 901 (Idaho Ct. App. 2008) (finding that chat room statements were adequately linked to the defendant by evidence that he arrived for a meeting as arranged in that private correspondence), rev. denied, No. 31422, 2008 Ida. App. LEXIS 117 (Idaho August 11, 2008); In re F.P., 878 A.2d 91, 95-96 (Pa. Super. Ct. 2005) (holding that evidence regarding content and timing of threatening instant messages was sufficient to authenticate them, and rejecting the argument that anonymity of electronic messages makes them inherently unreliable).

To be sure, profile information posted on social networking Web pages differs from chat logs of instant message correspondence conducted through such sites. A chat log is a verbatim transcript of a private "real time" online conversation between site members, which can be authenticated by either of the two participants. In contrast, social networking profiles contain information posted by someone with the correct user name and password, with the intent that it be viewed by others. Therefore, a proponent should anticipate the concern that someone other than the alleged author may have accessed the account and posted the message in question. Cf., e.g., In re K.W., 666 S.E.2d 490, 494 (2008) (although victim admitted that the proffered MySpace page was hers, she claimed that her friend posted the answers to the survey questions that defendant sought to introduce as impeachment evidence with respect to her claims of rape). See also St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774-75 (S.D. Tex. 1999) ("There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet . . . hackers can adulterate the content on any website. . . .").

A pseudonymous social networking profile might be authenticated by the profiled person, based on an admission. That did not occur here, however, because the State never questioned Ms. Barber about the profile. Nevertheless, we regard decisions as to authentication of evidence from chat rooms, instant messages, text messages, and other electronic communications from a user identified only by a screen name as instructive to the extent that they address the matter of authentication of pseudonymous electronic messages based on content and context. 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. Accord Minotti, supra, at 1061-62 ("cases that did not address social networking web sites specifically but addressed Internet communication devices similar to social networking web sites, such as instant messaging and email, are helpful because of the argument presented for the denial of admissibility . . . such as . . . problems with authentication").

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. That is precisely what occurred here.

The My Space profile printout featured a photograph of Ms. Barber and appellant in an embrace. It also contained the user's birth date and identified her boyfriend as "Boozy." Ms. Barber testified and identified appellant as her boyfriend, with the nickname of "Boozy." When defense counsel challenged the State to authenticate the MySpace profile as belonging to Ms. Barber, the State proffered Sergeant Cook as an authenticating witness. He testified that he believed the profile belonged to Ms. Barber, based on the photograph of her with appellant; Ms. Barber's given birth date, which matched the date listed on the profile; and the references in the profile to "Boozy," the nickname that Ms. Barber ascribed to appellant.

[Footnote 7] The defense never recalled Ms. Barber to dispute the accuracy of Cook's testimony.

Appellant relies on two out-of-state cases to suggest that printouts from such social networking sites must be authenticated either by the author or expert information technology evidence, neither of which occurred here. We are not persuaded. The unpublished Florida decision cited by appellant lacks persuasive value. The other case, In re, Inc. Securities Litigation, 347 F. Supp. 2d 769 (C.D. Cal. 2004), involved a ruling that printouts from a corporate Web site were properly excluded in securities litigation because there was no authenticating evidence from the company's "web master or someone else with personal knowledge . . . ." Id. at 782. In our view, the case is not instructive because appellant never argued below that the printout did not accurately depict the MySpace profile in question. Moreover, printouts from a company-created and controlled Web site differ materially from printouts from a social networking profile, in that site members create and control their own individual profiles.

On the record before us, we have no trouble concluding that the evidence was sufficient to authenticate the MySpace profile printout. Therefore, the trial court did not err or abuse its discretion in admitting that document into evidence.

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