Facebook Authentication — Kansas Adopts More Liberal Circumstantial Evidence Approach (Parker, Not Griffin)

State v. Jones, 2014 Kan. App. Unpub. LEXIS 118 (Kan. Ct. App. Feb. 28, 2014):

Mitchell Jones, III, appeals his convictions for aggravated battery and criminal threat involving his ex-wife. The jury acquitted Jones of charges of aggravated kidnapping, aggravated sexual battery, aggravated burglary, and two additional counts of aggravated kidnapping involving Jones' children. Jones argues the trial court improperly admitted a printout of a Facebook page without proper authentication***. We affirm.

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First, Jones argues the trial court abused its discretion by admitting a printout of his Facebook page because the State failed to properly authentic the exhibit under K.S.A. 60-464 and K.S.A. 60-401(m). Jones contends a Facebook page printout is similar to a photograph and the State failed to present evidence the printout was a true and accurate representation of Jones' Facebook page. However, he acknowledges that as with a photograph, any witness with personal knowledge can lay a foundation sufficient to admit a photograph. See State v. Diaz & Altemay, 232 Kan. 307, 315, 654 P.2d 425 (1982). Jones maintains the State failed to establish that he authored the postings at issue. Additionally, Jones argues the erroneous admission of this evidence was not harmless, considering this case was purely a "he-said, she-said" incident completely dependent on S.J.'s credibility. We disagree with Jones' authentication arguments.

Kansas courts have not addressed the admissibility of social networking websites. The court in State v. Raskie, 293 Kan. 906, 918-19, 269 P.3d 1268 (2012), faced the issue of the admissibility of My space postings but held the issue was raised for the first time on appeal and waived by the failure to adequately brief the issue***.

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Admissibility of evidence is a matter which rests largely within the discretion of the trial court. Any evidence is relevant which logically tends to prove or disprove any material fact that is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. Kansas law favors the admission of any relevant evidence, no matter how slight its probative value. How much weight the evidence is given is left to the jury. See State v. Carter, 284 Kan. 312, 328, 160 P.3d 457 (2007) ("Generally, all relevant evidence is admissible. Evidence is relevant if it renders a desired inference more probable than it would be without the evidence, or  if it has any tendency in reason to prove any material fact." [citing K.S.A. 60-401(b); State v. Sexton, 256 Kan. 344, 349, 886 P.2d 811 (1994)]).

Other courts have addressed the admissibility of Internet evidence. Documents from electronic sources, such as the printouts from a website like Facebook, are subject to the same rules of authentication as other documents and may be authenticated through circumstantial evidence. See, e.g., Burgess v. State, 292 Ga. 821, 823(4), 742 S.E. 2d 464 (2013); Smoot v. State, 316 Ga. App. 102, 109(4)(a), 729 S.E.2d 416 (2012). K.S.A. 60-401(m) defines a "writing" as a "handwriting, typewriting, printing, photostating, photographing and every other means of recording upon any tangible thing any form or communication or representation, including letters, works, pictures, sounds, or symbols, or combinations thereof." Authentication of a writing is provided for in K.S.A. 60-464 and the writing may be admitted after presentation of "evidence sufficient to sustain a finding of its authenticity or by any other means provided by law." K.S.A. 60-464.

As a general rule, a writing will not be admitted into evidence unless the offering party tenders proof of the authenticity or genuineness of the writing. K.S.A. 60-464. There is no presumption of authenticity, and the burden of proof rests upon the proffering party to establish a prima facie case of genuineness. Printouts of web pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at which the printout was made before they can be introduced into evidence. Then, to be relevant and material to the case at hand, the printouts often will need to be further authenticated as having been posted by a particular source. See Smoot, 316 Ga.App. at 109-110(4)(a).

Jones cites Griffin v. State, 419 Md. 343, 356-58, 19 A.3d 415 (2011), where the court applied a greater level of scrutiny for printouts of social networking websites due to the "heightened possibility for manipulation by other than the true user or poster." Griffin involved a prosecution for murder and assault, and the State proffered a printout of portions of a My Space profile purporting to be that of Griffin's girlfriend. Although the girlfriend testified at trial, the State did not attempt to authenticate the MySpace profile as genuinely hers through her testimony. Instead, the lead investigator in the case testified that the MySpace profile identified itself as being that of "Sistasouljah," having the same date of birth as the girlfriend. Also posted on the profile was a photographic image of the defendant with his girlfriend. The State argued that the date of birth and the photograph provided sufficient indicia of authentication to justify admission of other postings on the MySpace profile that amounted to veiled threats against the State's principal witness against the defendant.

The Maryland Court of Appeals disagreed. 419 Md. at 357. "Anyone can create a MySpace profile at no cost," the court observed, and "anyone 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[.]" 419 Md. at 351, 352. Relying for "assistance" in its analysis upon Lorraine v. Markel American Insurance Co., 241 F.R.D. 534, 541-44 (D. Md. 2007), the Maryland Court of Appeals concluded:

   "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 [the defendant's girlfriend] was its creator and the author of the [threatening] language [posted thereon]." 419 Md. at 357-58

Accordingly, the Griffin court held that the trial court had abused its discretion in finding the State had laid an adequate prima facie foundation for admission of the MySpace profile postings. 419 Md. at 357.

Along the way, the Griffin court recognized three nonexclusive methods to authenticate the website postings. First, the proponent could present the testimony of a witness with knowledge; or, in other words, "ask the purported creator if she indeed created the profile and also if she added the posting in question." 419 Md. at 363. Second, the proponent could offer the results of an examination of the Internet history or hard drive of the person who is claimed to have created the profile in question to determine whether that person's personal computer was used to originate the evidence at issue. 419 Md. at 363. Or, third, the proponent could produce information that would link the profile to the alleged person from the appropriate employee of the social networking website corporation. 419 Md. at 364. The first method is applicable here.

S.J. testified she was familiar with and recognized Jones' Facebook page. She indicated the two had communicated often by Facebook including discussions about the exchange of their children. She had previously been to his Facebook and she had seen his threatening posts before he came to her house that day. Defense counsel objected to admission of the Facebook postings based on lack of foundation, authentication, and hearsay. The State presented S.J.'s testimony that she told the police about Jones' Facebook posting and the police eventually showed her a printout of the Facebook page now being presented at the trial. The trial court overruled defense counsel's objection and admitted the Facebook posting.

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"Based on this evidence, the trial court was authorized to conclude the State sufficiently authenticated the printouts as accurately reflecting the content of Jones' Facebook page. Further, Jones does not contest that the Facebook printout accurately reflects his Facebook page. However, Jones contends he did not post the material on his Facebook page. See Burgess, 292 Ga. at 823-24(4) (screen shot from Myspace website was sufficiently authenticated where profile page belonged to a person who went by defendant's nickname, listed biographical information matching that of defendant, and contained images that were of the defendant); Smoot, 316 Ga. App. at 105, 109-10(4)(a) (printouts from website accurately and fairly represented website actually viewed; circumstantial evidence linked the website to the defendant where defendant's business card listed the website's address, the website had images of the defendant using the name "Gold," and the website had the statement "Created by Gold").

We find there was proper authentication. Jones admitted the Facebook page was his. His picture appears by the posts on his Wall. The content of the posts discussing S.J. driving by his house is consistent with the theories presented by the defense testimony provided by Jones' fiance and her father. Whether Jones actually authored the posts on his own Facebook page affected the weight of the evidence, not its admissibility, and was ultimately an issue for the jury to decide. See Brown v. State, 291 Ga. 892, 897(3), 734 S.E.2d 23 (2012); Clark v. State, 283 Ga. App. 884, 887(2), 642 S.E.2d 900 (2007). Consequently, the trial court did not abuse its discretion when it admitted the printout of the Facebook profile page into evidence.

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