Commercial Litigation and Arbitration

Authentication of Facebook Messages Requires Circumstantial Evidence That the Purported Sender in Fact Was Responsible for the Message

Campbell v. State, 382 S.W.3d 545 (Tex. App. 2012):

A jury convicted appellant Travis Campbell of aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02 (West 2011). Pursuant to an agreement with the State regarding punishment, the trial court sentenced Campbell to four years' imprisonment. In his sole issue on appeal, Campbell argues that the trial court erred by improperly admitting Facebook messages that the State contended were created by Campbell. We affirm the judgment of the trial court. ***

At the time of the incident giving rise to Campbell's arrest, Campbell was sharing a house with his girlfriend, Ana B., and her two young children. On February 26, 2011, the night before the incident, the couple had gone out for dinner and drinks at a local restaurant. At trial, Ana and Campbell presented wholly different accounts of the events following that outing.

According to Ana, Campbell became upset during dinner when Ana received a Facebook message on her phone from one of Campbell's male friends. Following dinner, the couple returned home, and Campbell continued to question Ana about the message. Eventually, Campbell left to go to a party while Ana remained at the house. Ana testified that when Campbell returned, at approximately four in the morning, he woke her and began questioning her again about the Facebook message.

In response to Campbell's questioning, Ana told Campbell to leave and tried to push him off the bed with her feet. According to Ana, Campbell then took off his clothes and approached Ana suggesting he wanted to have sex with her. When Ana resisted, Campbell hit her several times in her face and chest with her cell phone. ***

In his sole issue on appeal, Campbell complains that the trial court erred in admitting evidence that was not properly authenticated and was harmful to his defense. Specifically, Campbell contends that the trial court erred in admitting a printout of Facebook messages purportedly sent by Campbell to Ana and identified at trial as State's Exhibit 14. Campbell argues that the only authentication evidence presented prior to the admission of the exhibit was Ana's testimony that she received these Facebook messages from Campbell a few days after the alleged assault, that she did not send them to herself, and that she did not have access to Campbell's Facebook account after the incident. Campbell [**6] asserts that there is no evidence that the messages are in fact from his Facebook account. Campbell contends that the trial court's admission of these messages was harmful error because the exhibit was "a crucial piece of evidence establishing the aggravated assault with the fork." ***

The requirement of authentication or identification is a condition precedent to admissibility and is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims it is. Tex. R. Evid. 901(a). Whether the proponent of evidence has satisfied the threshold requirement of authenticity is one of the preliminary questions to be decided by the court. Tienda, 358 S.W.3d at 638. However, rule 901 "does not erect a particularly high hurdle, and that hurdle may be cleared by circumstantial evidence." Peter T. Hoffman, Texas Rules of Evidence Handbook, Article IX at 948 (8th ed. 2008-09) (quoting United States v. Chin, 371 F.3d 31, 37 (2d Cir. 2004)). The proponent of evidence does not need to "rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be." ... In fact, in performing its gate-keeping function under rule 104, the trial court itself need not be persuaded that the proffered evidence is authentic. Tienda, 358 S.W.3d at 638. Rather, the ultimate question of whether an item of evidence is what the proponent claims is a question for the fact finder. Id. In a jury trial, the preliminary question for the trial court to decide is simply whether the proponent of the proffered evidence has supplied facts that are sufficient to support a reasonable jury determination that the evidence is authentic. Id.; see also Manuel v. State, 357 S.W.3d 66, 74 (Tex. App.--Tyler 2011, pet. ref'd) ("The proponent must only produce sufficient evidence that a reasonable fact finder could properly find genuineness.").***

Rule 901 of the Texas Rules of Evidence provides a nonexclusive list of methods for authentication of evidence. See Tex. R. Evid. 901. For example, evidence may be authenticated by testimony from a witness with knowledge that a matter is what it is claimed to be. Id. R. 901(b)(1). Evidence may also be authenticated by "appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." Id. R. 901(b)(4). In the context of communications, the authentication issue that generally arises is whether the evidence is sufficiently linked to the purported author. With respect to electronic communications—such as e-mails, text messages, and as in this case, Facebook—the rules of evidence, including rule 901, are considered at least generally "adequate to the task." See Tienda, 358 S.W.3d at 638. Printouts of emails, internet chat room dialogues, and text messages have all been admitted into evidence when found to be sufficiently linked to the purported author so as to justify the submission to the jury for its ultimate determination. See id. at 639.

However, in evaluating whether an electronic communication has been sufficiently linked to the purported author, we recognize that electronic communications are susceptible to fabrication and manipulation. See id. at 641 (explaining that some courts, "mindful that the provenance of such electronic writings can sometimes be open to question," have held that prima facie authenticity was not demonstrated). For example, social networking websites, such as Facebook and MySpace, allow users to establish an online account, create a profile, and then invite others to access that profile as a "friend." See Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 845-46 (W.D. Tex. 2007); see also Griffin v. State, 419 Md. 343, 19 A.3d 415, 420-21 n.6 (Md. 2011) (noting that MySpace and Facebook work in same way). Accordingly, with respect to identity, Facebook presents an authentication concern that is twofold. First, because anyone can establish a fictitious profile under any name, the person viewing the profile has no way of knowing whether the profile is legitimate. Griffin, 19 A.3d at 421 (citing David Hector Montes, Living Our Lives Online: The Privacy Implications of Online Social Networking, J.L. & Pol'y for the Info. Soc'y, Spring 2009, at 507, 508). Second, because a person may gain access to another person's account by obtaining the user's name and password, the person viewing communications on or from an account profile cannot be certain that the author is in fact the profile owner. Id. Thus, the fact that an electronic communication on its face purports to originate from a certain person's social networking account is generally insufficient standing alone to authenticate that person as the author of the communication. See Tienda, 358 S.W.3d at 642. However, the most appropriate method for authenticating electronic evidence, as with any kind of evidence, "will often depend on the nature of the evidence and the circumstance of the particular case." Id. at 641.

The Texas Court of Criminal Appeals recently addressed the authentication of printouts of social-networking websites in Tienda, 358 S.W.3d at 638-47. In that case, the State offered evidence associated with three MySpace personal profiles, including account information and printouts of profile pages on which photographs, comments, and music were posted. Id. at 642. At trial, the defendant did not admit that he had authored the pages. Id. at 647. Further, the State did not attempt to authenticate the pages through the results of an examination of the defendant's internet history or hard drive, nor did the State attempt to link the pages to the defendant through an employee of the social-networking website. Id. Upon the State's offering, defense counsel objected to the admission of the evidence, emphasizing that the case-specific facts referenced in the MySpace messages associated with the account "were not facts solely within the defendant's knowledge, but were known to the deceased's family, friends, and practically any third party interested in the case." Id. at 636. Nevertheless, the trial court admitted the evidence over defendant's objection. Id. at 635.

On appeal, the court of criminal appeals held that there was "ample circumstantial evidence--taken as a whole with all the individual particular details considered in combination--to support a finding that the MySpace pages belonged to the appellant and that he created and maintained them." Id. at 645. For example, the court of criminal appeals noted that there were numerous photographs of defendant with his unique arm, body, and neck tattoos, as well as his distinctive eyeglasses and earring. There was also a reference to the victim's death and music from his funeral, as well as references to the defendant's gang and messages referring to the shooting. Id. While the court acknowledged that it was "conceivable" that someone else had fabricated and maintained the MySpace pages, the court explained that this was a "scenario whose likelihood and weight the jury was entitled to assess." Id. at 646.

In this case, the State introduced one exhibit comprised of printouts of three Facebook messages alleged to have been sent by Campbell to Ana's Facebook account. Each message contain a banner and date stamp at the top of the message stating, "Travis Campbell, March 2 [time]." The first message states:

what was i thinking I am totally wrong it don't matter what you say or do to me i should never put my hand on you, who is me to do that to you you give me nothing but love on your kids, then now i disregard that i am so sorry you or [sic] the only person i got on my side please help me ana please i would love to call u don't lock me up please i am begging you

Similarly, a second message, dated that same day, states:

i did you bad something that you would never thaugh [sic] i am very sorry i am mad of my self, I am begging your fotgivness [sic] please i can't sleep or eat i f-- up the bess [sic] thing i ever have, i am sorry ana help me please i am week [sic] i don't know what to do i am going to call u please answer please don't sign the paper please ana, I need to talk to u.

Finally, a final message, also dated March 2, states:

please help me ana i cry every day i am so f--ing stuppid [sic] for hurthig [sic] u i am guilty what was I thinking please message me tell me your mind let me talk please, I am so ashame [sic].

At trial, the State attempted to impeach Campbell with the Facebook messages. In response, Campbell acknowledged having a Facebook account but denied sending Ana any Facebook messages after the incident. Campbell claimed that both he and Ana, but no one else, had his Facebook account password. In order to authenticate the messages, the State recalled Ana to testify about the origin of the messages. Ana testified that she recognized the printouts as messages she had received from Campbell on March 2, 2011. She also testified that she did not send them to herself. While Ana admitted that she had access to Campbell's Facebook account at sometime before March 2, she stated that both she and Campbell had changed their passwords before this date. Upon Ana's testimony, and over Campbell's objection as to authenticity, the trial court admitted the messages as a single exhibit.

In analyzing whether the evidence is sufficient to support the trial court's ruling, we start by noting that the content of the messages themselves purport to be messages sent from a Facebook account bearing Campbell's name to an account bearing Ana's name. While this fact alone is insufficient to authenticate Campbell as the author, when combined with other circumstantial evidence, the record may support a finding by a rational jury that the messages were authored and sent by Campbell. See id. at 642; see also Commonwealth v. Purdy, 459 Mass. 442, 945 N.E.2d 372, 381 (Mass. 2011) (explaining that e-mail sent from Facebook account bearing defendant's name not sufficiently authenticated without additional "confirming circumstances"). Accordingly, we examine whether the remaining evidence supports the trial court's ruling.

Turning to the Facebook messages themselves, we find that the messages contain internal characteristics that tend to connect Campbell as the author. First, the unique speech pattern presented in the messages is consistent with the speech pattern that Campbell, a native of Jamaica, used in testifying at trial. Second, the messages reference the incident and potential charges, which at the time the messages were sent, few people would have known about. See Massimo v. State, 144 S.W.3d 210, 216 (Tex. App.--Fort Worth 2004, no pet.) (concluding that "internal characteristics" served to authenticate e-mails, including fact that e-mail was sent shortly after altercation and referenced altercation and fact that contents of e-mails were written in same way in which appellant communicated). Thus, the contents of the messages provide circumstantial evidence supporting the trial court's ruling.

Further, the undisputed testimony provides circumstantial evidence tending to connect Campbell to the messages. The undisputed testimony yields the following: (1) Campbell had a Facebook account; (2) only he and Ana ever had access to his Facebook account; and (3) Ana received the messages bearing Campbell's name. This evidence suggests that only Campbell or Ana could have authored the messages received in Ana's Facebook account. In addition, Ana told the jury that she could not access Campbell's account, and therefore, she did not send the messages to herself. While this evidence certainly does not conclusively establish that Campbell authored the messages--in fact, Campbell insisted that he did not--the State was not required to "'rule out all possibilities inconsistent with authenticity or prove beyond any doubt that the evidence is what it purports to be.'" See Manuel, 357 S.W.3d at 74 (quoting Chin, 371 F.3d at 37). So long as the authenticity of the proffered evidence was at least "within the zone of reasonable disagreement," the jury was entitled to weigh the credibility of these witnesses and decide who was telling the truth. See Tienda, 358 S.W.3d at 638, 645-46 (explaining that conceivably someone could have concocted appellant's MySpace page "[b]ut that is an alternate scenario whose likelihood and weight the jury was entitled to assess once the State had produced a prima facie showing that it was appellant, and not some unidentified conspirators or fraud artists, who created and maintained these MySpace pages").

The facts and issues in this case are similar to those in a case decided by our sister court of appeals in Fort Worth. See Massimo, 144 S.W.3d at 216-17. In that case, the defendant disputed the authenticity of a harassing e-mail that the State alleged she had sent to the complainant. See id. at 216-17. At trial, the defendant asserted that someone was impersonating her and sent the e-mail on her behalf. Id. However, the court of appeals concluded that the trial did not abuse its discretion in admitting the e-mail, explaining that the e-mail contained characteristic evidence supporting the assertion that appellant had sent it. Id. at 216. For example, the court pointed out that (1) the e-mail was sent shortly after a physical altercation between the defendant and complainant, and the e-mail referenced the altercation; (2) the complainant recognized the e-mail account as the defendant's and had previously received messages from the account; (3) only a few people knew about the things discussed in the e-mail; (4) the complainant testified that the way in which the e-mail was written was the way in which the defendant would communicate; and (5) another witness testified that she had seen the defendant send similar harassing e-mails from a different account. Id. While this case involves Facebook messages, as opposed to e-mails, the messages in this case likewise include similar identifying features.

From the record before us--including (1) the similarities between the speech pattern presented in the messages and Campbell's speech pattern at trial; (2) the fact that the messages reference the incident and were sent just a few days after the incident; (3) testimony establishing that only Campbell and Ana have ever had access to Campbell's Facebook account; and (4) Ana's testimony that she did not have access to Campbell's Facebook account at the time the messages were sent--we conclude that there was prima facie evidence such that a reasonable jury could have found that the Facebook messages were created by Campbell. Accordingly, we cannot conclude that the trial court abused its discretion in admitting the evidence over Campbell's objection to authentication.

In addition, even if the trial court had abused its discretion in admitting the Facebook messages as evidence, we would find that the error was harmless.

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