Commercial Litigation and Arbitration

Facebook & Twitter Authentication: Facebook Conversations’ Content Same as Oral Threats + Affidavit from Facebook Custodian That Automated Systems Captured Them when Transmitted — Twitter Content + Pictures + Username

MTV v. State, 2016 Ind. App. LEXIS 461 (Ind. Ct. App. Dec. 22, 2016):

Case Summary

P1 M.T.V. appeals his adjudication of delinquency for Conspiracy to Commit Aggravated Battery, a Level 3 felony if committed by an adult.1 We affirm.

1   Ind. Code § 35-42-2-1.5.


P2 M.T.V. raises the following restated issues:

   I. Whether the trial court abused its discretion when it:

   A. Determined there was a sufficient foundation to admit records of M.T.V.'s Facebook conversations, and

B. Admitted statements made by M.T.V.'s coconspirator in those Facebook conversations; and

II. Whether the evidence is sufficient to support M.T.V.'s adjudication.

Facts and Procedural History

P3 On January 13, 2016, when M.T.V. was sitting at a Seymour High School cafeteria table, M.T.V. stated that he and another student, B.E., were going to bring guns into the school on April 20, 2018. M.T.V. said that the date [*2]  was the same day as the Columbine shooting. M.T.V. also said that he and B.E. had a list and that a student, J.R., was first on the list. Another student at the lunch table reported M.T.V.'s statements to counselors and an investigation ensued. During the investigation, the Seymour Police Department ("SPD") obtained records from Facebook containing conversations between M.T.V. and B.E.

P4 On February 16, 2016, the State filed a delinquency petition alleging that M.T.V. committed an act that would be Conspiracy to Commit Murder if committed by an adult. The State later amended the petition, adding allegations of Conspiracy to Commit Aggravated Battery and Conspiracy to Commit Possession of Firearm on School Property.

P5 During a fact-finding hearing on May 20, 2016, the State sought to admit the Facebook conversations into evidence. M.T.V. objected, arguing that the Facebook records were not properly authenticated and that the conversations contained inadmissible hearsay. After hearing argument from M.T.V. and the State, the trial court admitted the conversations. When the hearing concluded, the juvenile court took the matter under advisement, and later entered a true finding for only [*3]  one allegation, Conspiracy to Commit Aggravated Battery.

P6 M.T.V. now appeals.

Discussion and Decision

Admission of Evidence

P7 Although juvenile delinquency hearings are civil in nature, a formal fact-finding hearing is analogous to a criminal trial and the rules of evidence apply to the same extent as in a criminal case. N.L. v. State, 989 N.E.2d 773, 779 (Ind. 2013). A trial court has broad discretion to rule on the admissibility of evidence. Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). We review rulings on the admissibility of evidence "for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights." Guilmette v. State, 14 N.E.3d 38, 40-41 (Ind. 2014).

A. Authentication of Facebook Records

P8 Here, M.T.V. argues that the juvenile court abused its discretion in admitting copies of the Facebook conversations between M.T.V. and B.E.2 Indiana Rules of Evidence Rule 901(a) provides that "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Ind. Evidence Rule 901(a). Absolute proof of authenticity is not required. Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied. Rather, the proponent of the evidence must establish only a reasonable probability that the evidence [*4]  is what it is claimed to be, and may use direct or circumstantial evidence to do so. Id. Once this reasonable probability is shown, any inconclusiveness of the evidence's connection with the events at issue goes to evidential weight, not admissibility. Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied.

2   One of M.T.V.'s arguments focuses on whether the Facebook conversations warranted admission as business records under Indiana Evidence Rule 803(6). Finding another basis for the proper admission of the conversations, we need not reach this issue.

P9 "Letters and words set down by electronic recording and other forms of data compilation are included within Rule 901(a)." Wilson v. State, 30 N.E.3d 1264, 1268 (Ind. Ct. App. 2015), trans. denied. Moreover, Evidence Rule 901(b) provides a non-exhaustive list of evidence that satisfies the authentication requirement. One example is where there is evidence describing a process or system and showing that it produces an accurate result. Evid. R. 901(b)(9). Another example, provided in Evidence Rule 901(b)(4), is where, taken together with all the circumstances, the evidence has distinctive characteristics in appearance, contents, or substance. Federal Rule of Evidence 901(b)(4) uses language identical to that of Indiana Rule of Evidence 901(b)(4). "We have previously acknowledged that federal courts have recognized Federal Rule of Evidence 901(b)(4) as one of the most frequently used means to authenticate electronic data, including text messages and emails." Wilson, 30 N.E.3d at 1268 (citing Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009)); see, e.g., United States v. Lewisbey, No. 14-2236, slip op. at 5-7 (7th Cir. Dec. 9, 2016) (looking to Federal Rule of Evidence 901(b)(4) when concluding that certain text messages and Facebook posts were properly authenticated).

P10 In Wilson, we addressed [*5]  whether messages sent through a Twitter social media account were properly authenticated as having been authored by the defendant. 30 N.E.3d at 1268. There, a witness testified that she often communicated with Wilson on Twitter and had general knowledge of the account by its "@Nell_FearNoMan" header. Id. at 1268-69. The contents of the account records included pictures depicting Wilson holding guns that matched the description of those used in the crime. Id. at 1269. Moreover, there was testimony that Wilson was affiliated with two gangs, and the @Nell_FearNoMan Twitter account frequently used terms referring to those gangs, showing that the author of the messages was affiliated with them. Id. We concluded that "taken together, the witness testimony identifying the Twitter account as belonging to Wilson and the content posted on the account, including pictures and gang references, are more than sufficient to authenticate the Twitter posts as being authored by Wilson." Id.

P11 Here, in an interview with law enforcement, M.T.V. admitted to having Facebook conversations with B.E. and said that, in those conversations, B.E. made threats to shoot up the school on April 20, 2018. M.T.V. also said that B.E. asked M.T.V. for help conducting [*6]  the shooting. The Facebook records introduced at the hearing contain the content M.T.V. said they would. Moreover, in addition to having distinctive characteristics in content, the Facebook records were also supported by an affidavit from Facebook's authorized records custodian, Kelsey McIntosh ("McIntosh"). The sworn affidavit specified, inter alia, that the records were made and kept by Facebook's automated systems and were made at or near the time the Facebook user transmitted the information. At the hearing, Detective Foster testified that the procedure he used to obtain the Facebook records was an ordinary procedure that he had previously used for criminal investigations involving Facebook.

P12 We conclude that, collectively, the State established the requisite reasonable probability that the Facebook records corresponded to M.T.V.'s and B.E.'s accounts and that M.T.V. and B.E. authored the conversations therein. Therefore, the juvenile court did not abuse its discretion with respect to authentication. Our review does not end here, however, because the content of the authenticated conversations must also be admissible.***

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