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Facebook Posts Put to Lower Evidence Standard

(CN) - Judges need not authenticate Facebook posts to be admitted at trial as long as a reasonable juror could find that the stated user made the post, the Delaware Supreme Court ruled.

The decision notes that Facebook messages regarding a mutual love interest led to the Dec. 2, 2011, physical altercation between Tiffany Parker and Sheniya Brown on Clifford Brown Walk in Wilmington, Del.

After police separated the women, Parker was indicted on one count of second-degree assault and one count of terroristic threatening.

A bystander who spoke at the trial testified that testified that Parker appeared to be "getting the best of the pregnant girl [Brown]."

Police had intervened after bystanders separated the two, only for Brown to return with a knife and resume the altercation.

Though Parker claimed self-defense, Delaware sought to discredit that argument by introducing Facebook wall posts she created one day after the altercation.

One of the entries states: "Bet tht [sic] bitch didnt [sic] think [I] was going to see her ass ... bet she wont [sic] inbox me no more, #caughtthatbitch." (Brackets and ellipses included in ruling.)

Another reads: "[I] told you go head [sic] and you inboxed [sic] me back still being disrespectful...[I] told you say no more [sic] ... [I] seen [sic] you today ... we said our words you put your hands on me ... [I] hit you back..."

In Maryland, the party that wants to enter a Facebook post into evidence must first convince the trial court judge that the post was not created by another user under a false name.

A Texas court approach meanwhile "involves a lower hurdle than the Maryland approach, because it is for the jury - not the trial judge - to resolve issues of fact, especially where the opposing party wishes to challenge the authenticity of the social media evidence," according.

Adopting the Texas court approach, a New Castle County judge admitted the evidence and a jury convicted Parker of second-degree assault. She was acquitted her of terroristic threatening.

The Delaware Supreme Court found Wednesday that circumstantial evidence was enough to authenticate the Facebook posts as written by Parker.

"Under the Maryland approach, social media evidence may only be authenticated through the testimony of the creator, documentation of the internet history or hard drive of the purported creator's computer, or information obtained directly from the social networking site," Justice Henry duPont Ridgely wrote for the five-judge panel. "Unless the proponent can demonstrate the authenticity of the social media post to the trial judge using these exacting requirements, the social media evidence will not be admitted and the jury cannot use it in their factual determination."

In adopting the Texas approach, the court ruled that social media evidence does not require greater scrutiny than other evidence.

"We conclude that the Texas approach better conforms to the requirements of Rule 104 and Rule 901 of the Delaware Rules of Evidence, under which the jury ultimately must decide the authenticity of social media evidence," Ridgely said. "A trial judge may admit a relevant social media post where the proponent provides evidence sufficient to support a finding by a reasonable juror that the proffered evidence is what the proponent claims it to be."

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