Commercial Litigation and Arbitration

Authentication of Facebook Messages through Circumstantial Evidence

United States v. Grant, 2011 CCA LEXIS 217 (Ct. Crim. Mil. App. Oct. 17, 2011):

A special court-martial composed of officer members convicted the appellant in accordance with his pleas of one specification of dereliction of duty by providing alcohol to an underage female and two specifications of a violation of a lawful general order, by wrongfully developing a personal, intimate, or sexual relationship with two Airmen who were technical trainees while he was a military training instructor, in violation of Article 92, UCMJ, 10 U.S.C. § 892. The special court-martial panel also found the appellant guilty of making a false official statement to detectives, in violation of Article 107, UCMJ, 10 U.S.C. § 907. The adjudged and approved sentence included a reprimand, reduction to the grade of E-4, and a bad-conduct discharge.

The appellant raises four issues on appeal: *** (4) whether the military judge violated Mil. R. Evid. 901 by finding that the testimony of Airman (Amn) DM was sufficient to authenticate Facebook messages purportedly sent by the appellant and received by her.***

Facebook Messages

The appellant asks that we set aside the finding of guilty on Specification 1 of Charge II or, in the alternative, set aside the bad-conduct discharge for what he asserts was error by the military judge in the admission of copies of Facebook messages, in violation of Mil. R. Evid. 901.

We review a military judge's ruling on the admission of evidence for an abuse of discretion. United States v. McCollum, 58 M.J. 323, 335 (C.A.A.F. 2003) (citations omitted); United States v. Robles-Ramos, 47 M.J. 474, 476 (C.A.A.F. 1998) (applying abuse of discretion standard of review for admissibility of uncharged misconduct); United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995) (applying abuse of discretion standard of review for motions to suppress). "[A] military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect." Ayala, 43 M.J. at 298.

"The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Mil. R. Evid. 901(a). "[A]uthentication is a component of relevancy (evidence admitted as something can have no probative value unless that is what it really is)." United States v. Blanchard, 48 M.J. 306, 309 (C.A.A.F. 1998). The "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances" may be sufficient to conform with the requirements of Mil. R. Evid. 901. See Mil. R. Evid. 901(b)(4).

The Facebook messages introduced in this case contained the name "Mike Grant" next to each entry purportedly entered by the appellant. Each message also contained a photograph of the appellant wearing his military uniform. Amn DM testified that she knew the messages were from the appellant, "Because all of his pictures were on there. He had added us right after like -- we had like just seen him at the BX and then we went to my room and I checked my Facebook, and he had just added us. And he talked about like our flight and stuff and he gave me his number on Facebook." She further testified that she "texted" the appellant at the phone number he gave her via the Facebook messages and corresponded with him that way as well. Finally, she testified that she and the appellant made plans and she relied on the information the appellant gave her for those plans via the Facebook messages.

After review of the messages admitted and the testimony regarding the messages, we find no violation of Mil. R. Evid. 901 and conclude the military judge did not abuse his discretion by admitting the Facebook messages.

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