Stricter Authentication Standards for Facebook Messages Than for Email — No Hearsay Issues Raised by Automatically-Generated Notification Message — Hearsay of Forwarded Messages/Emails
Smith v. State, 2013 Miss. App. LEXIS 318 (Miss. Ct. App. June 4, 2013):
A. Whether the Facebook messages were inadmissible because they were not properly authenticated.
P30. Smith claims that the messages were not properly authenticated. Mississippi Rule of Evidence 901(a) provides that "[t]he 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." Section 901(b) then illustrates various ways to authenticate evidence. For example, evidence may be authenticated by distinctive characteristics. M.R.E. 901(b)(4). The comment to Mississippi Rule of Evidence 901(b)(4) says "[l]etters or phone conversations disclosing knowledge peculiar to an individual may qualify. . . ." Evidence can also be authenticated if a witness with knowledge provides "testimony that a matter is what it is claimed to be." M.R.E. 901(b)(1).
P31. Mississippi's appellate courts have not specifically addressed the issue of authentication of Facebook messages. However, this Court has addressed a similar authentication issue regarding emails in Kearley v. State, 843 So. 2d 66 (Miss. Ct. App. 2003).
P32. Kearley sent several explicit emails to a young girl named Tina. Id. at 68 (¶5). Kearley argued the email messages had not been properly authenticated. Id. at 70 (¶17). Tina testified that she received on her computer the emails that were sent by Kearley. Id. at (¶19). Also, an officer testified that Kearley admitted he sent the emails. Id. The trial court admitted the emails into evidence and found that "the witness had vouched for the accuracy of the email printouts." Id. This Court affirmed the trial court's decision. Id. at (¶20).
P33. Other jurisdictions have addressed the issue of authentication of Facebook messages. In State v. Eleck, 130 Conn. App. 632, 23 A.3d 818 (Conn. App. Ct. 2011), defense counsel offered into evidence printed copies of messages that the defendant received in his Facebook account to impeach one of the state's witnesses. Id. at 820. To authenticate the printed copies, the defendant testified that he printed the messages directly from his computer. Id. at 821. Furthermore, he recognized that the username of the account that sent the messages was the one that belonged to the purported sender. Id. Also, he testified that the profile of the account that sent him the messages had pictures and other entries that identified the purported sender as the account holder. Id. The defendant testified that the Facebook account he claimed belonged to the state's witness "unfriended" him after the witness testified. Id.
P34. The state's witness denied that she sent the messages. Id. at 820. She also said that her Facebook account had been "hacked." Id. The trial court found the defendant had not authenticated the messages because it was not shown that the witness authored the messages. Id. at 821.
P35. The Connecticut court noted that Facebook messages present unusual authentication problems because account holders often leave their computers or cell phones unattended and remain logged in to their Facebook accounts. Id. at 822. That problem is compounded by the ease with which a hacker can break into an account. Id. The court noted that previous courts have held that proof that a message came from a particular account without other authenticating evidence was inadequate to prove authorship. Id. (citing Commonwealth v. Williams, 456 Mass. 857, 926 N.E.2d 1162 (Mass. 2010)); see also Com. v. Purdy, 459 Mass. 442, 945 N.E.2d 372, 381 (Mass. 2011) (establishing "[e]vidence that the defendant's name is written as the author of an email or that the electronic communication originates from an email or a social networking Web site such as Facebook or MySpace that bears the defendant's name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant").
P36. The court noted that the traditional means of authentication could also apply to electronic documents. Eleck, 23 A.3d at 823. For example, "the direct testimony of the purported author or circumstantial evidence of 'distinctive characteristics' in the document that identify the author" are methods that may be used to authenticate electronic evidence. Id. (citing Conn. Code Evid. § 9-1(a), commentary). The court held that proof that the witness managed and held the Facebook account was not enough. Id. at 824. The court held the defendant had to offer other evidence to authenticate the messages were authored by the witness and not simply sent from her Facebook account. Id.
P37. Here, the Facebook messages were authenticated by Waldrop. The following exchange occurred in Waldrop's testimony:
Q. Jenny, I'm going to show you copies of three documents, and I want you to look at these and tell me if you can identify what they are.
A. It's my Facebook messages.
Q. It's Page 1--it's three pages. What is the second page?
A. It's my Facebook letter to him.
A. His Facebook letter to me.
Q. So the first short one--
A. [W]as his.
Q. The second one is yours. And the last one is his?
A. Yes sir.
The State then offered the messages into evidence. Smith's counsel objected on the ground that the documents were hearsay within hearsay and had not been properly authenticated.
P38. Waldrop's testimony was that these documents are the Facebook messages between her and Smith. Indeed, Waldrop's testimony "support[s] a finding that the matter in question is what its proponent claims." M.R.E. 901(a) & (b)(1). Looking at the decisions in Kearley and Eleck, we find this case more closely relates to Kearley, where testimony was presented that established that Kearley previously admitted he authored the messages. See Kearley, 843 So. 2d at 70 (¶19). As to this issue, we find that the Facebook messages were properly authenticated, and the circuit court did not abuse its discretion as to the authentication of the evidence.
B. Whether the Facebook messages were inadmissible as hearsay.
P39. Smith argues that the Facebook messages were inadmissible as double hearsay. There were two different types of messages. One message was an email that contained the Facebook message. This was a email notification automatically sent from Facebook to Waldrop as a notification that "Scott Smith sent you a message on Facebook." The other two messages were printouts of messages that were posted on Waldrop's Facebook page.
P40. Smith argues that the email notification was hearsay, and the statements contained in the message were also hearsay. Smith claims that these hearsay statements do not meet the exceptions of Mississippi Rule of Evidence 804(b) and should have been excluded from evidence. Smith cites no case authority to support this argument.
P41. "Hearsay is not admissible except as provided by law." M.R.E. 802. "Hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." M.R.E. 801(c). A "statement" is defined as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." M.R.E. 801(a). The "declarant" is the "person who makes [the] statement." M.R.E. 801(b). "Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." M.R.E. 805.
P42. This requires a two-part analysis. First, we must consider whether the email notification from Facebook was hearsay. Second, we must consider whether the content of the messages was hearsay.
P43. The email notification can be resolved in short order. A "statement" has two elements. It must be an "assertion," and it must be made by a human. M.R.E. 801(a). The email notification was an automatic feature of Facebook. The email notification was a fully automatic process. There was no "assertion," there was no "declarant," and the statement was not made by a human. Therefore, the automatic email notification from Facebook may not be considered as hearsay.
P44. Likewise, the printouts of the messages are not hearsay. Facebook's automatic notification features, which cause the messages to be sent within Facebook and sent via email notification, are not statements. Hence, the email notification and the sending of a message within Facebook are not to be considered as hearsay.
P45. There is no Mississippi authority as to this issue. Recently, in In re Oil Spill by the Oil Rig "Deep Water Horizon" in the Gulf of Mexico, 2012 U.S. Dist. LEXIS 3406, 2012 WL 85447, at *4 (E.D. La. Jan. 11, 2012), a Louisiana federal court determined that a forwarded email constituted double hearsay. The court reasoned that "not only is the email itself offered for the truth of its contents, and thus hearsay, but also many of the statements within a given email are hearsay." Id. The court noted that when someone forwards an email, he or she has made an out-of-court assertion as to what someone else said. Id. There, however, a person forwarded the message. Thus, there was an assertion and a declarant. Here, an automatic process sent each message. As a result, in this case there was neither an assertion nor a declarant. The email notification, which contained the Facebook message, is not within the definition of hearsay.
P46. Next, we consider whether the content of the messages would be considered to be hearsay and, thus, inadmissible under Rule 802.
P47. Two of the three messages were sent by Smith. These messages were Smith's own statements, and both statements are therefore not hearsay under Mississippi Rule of Evidence 801(d)(2)(A), because they are admissions by a party-opponent. The content of the messages sent by Smith are not hearsay, as defined by the rule, and were admissible in evidence.
P48. Waldrop's message to Smith could be hearsay. The State has offered no hearsay exception that this message would fall under. Nevertheless, we note that any error in the admission of Waldrop's Facebook message could only be considered harmless error.
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