Evidence Sufficient to Authenticate Profile Page on Social Networking Site

From Griffin v. Maryland, 419 Md. 343, 19 A.3d 415 (Ct. App. 2011) (reversing the decision of the Court of Special Appeals excerpted in our post of June 2, 2010):

We ... hold that the pages allegedly printed from [Defendant] Griffin's girlfriend's MySpace profile were not properly authenticated.... Griffin was charged in numerous counts with the shooting death, on April 24, 2005, of Darvell Guest at Ferrari's Bar in Perryville, in Cecil County. During his trial, the State sought to introduce Griffin's girlfriend's, Jessica Barber's, MySpace profile to demonstrate that, prior to trial, Ms. Barber had allegedly threatened another witness called by the State. The printed pages contained a MySpace profile in the name of "Sistasouljah," describing a 23 year-old female from Port Deposit, listing her birthday as " 10/02/1983" and containing a photograph of an embracing couple. The printed pages also contained the following blurb: “FREE BOOZY ["Boozy" was Ms. Barber’s nickname for the Defendant]!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!” When Ms. Barber had taken the stand after being called by the State, she was not questioned about the pages allegedly printed from her MySpace profile.***

Anyone can create a MySpace profile at no cost, as long as that person has an email address and claims to be over the age of fourteen***.

[A]nyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password***.

In the present case, Griffin argues that the State did not appropriately, for evidentiary purposes, authenticate the pages allegedly printed from Jessica Barber's MySpace profile, because the State failed to offer any extrinsic evidence describing MySpace, as well as indicating how Sergeant Cook obtained the pages in question and adequately linking both the profile and the "snitches get stitches" posting to Ms. Barber. The State counters that the photograph, personal information, and references to freeing "Boozy" were sufficient to enable the finder of fact to believe that the pages printed from MySpace were indeed Ms. Barber's.

We agree with Griffin and disagree with the State regarding whether the trial judge abused his discretion in admitting the MySpace profile as appropriately authenticated, with Jessica Barber as its creator and user, as well as the author of the "snitches get stitches" posting, based upon the inadequate foundation laid. We differ from our colleagues on the Court of Special Appeals, who gave short shrift to the concern that "someone other than the alleged author may have accessed the account and posted the message in question." Griffin, 192 Md. App. at 542, 995 A.2d at 805. While the intermediate appellate court determined that the pages allegedly printed from Ms. Barber's MySpace profile contained sufficient indicia of reliability, because the printout "featured a photograph of Ms. Barber and [Petitioner] in an embrace," and also contained the "user's birth date and identified her boyfriend as 'Boozy,'" the court failed to acknowledge the possibility or likelihood that another user could have created the profile in issue or authored the "snitches get stitches" posting. Id. at 543, 995 A.2d at 806.

We agree with Griffin that the trial judge abused his discretion in admitting [**424] the MySpace evidence pursuant to Rule 5-901(b)(4), because the picture of Ms. Barber, coupled with her birth date and location, were not sufficient "distinctive characteristics" on a MySpace profile to authenticate its printout, given the prospect that someone other than Ms. Barber could have not only created the site, but also posted the "snitches get stitches" comment. The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that Ms. Barber was its creator and the author of the "snitches get stitches" language.

In so doing, we should not be heard to suggest that printouts from social networking sites should never be admitted.... A number of authentication opportunities come to mind***.

The first, and perhaps most obvious method would be to ask the purported creator if she indeed created the profile and also if she added the posting in question, i.e. "[t]estimony of a witness with knowledge that the offered evidence is what it is claimed to be." Rule 5-901(b)(1). The second option may be to search the computer of the person who allegedly created the profile and posting and examine the computer's internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question. ***

A third method may be to obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it. ***

Footnote 15. Federally, some of the uncertainty involving evidence printed from social networking sites has been addressed by embracing the notion of "conditional relevancy," pursuant to Federal Rule 104(b), which provides "[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." In this way, the trier of fact could weigh the reliability of the MySpace evidence against the possibility that an imposter generated the material in question.

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