The Maryland Court of Appeals tackled a piece of one of the new vexing issues our courts face: dealing with social media. Most of the legal opinions circulating around involve discovery of social media such as Facebook and Twitter in civil cases. The court’s opinion in Griffin v. State deals with a different issue: determining the appropriate way to authenticate at trial electronically stored information printed from a social networking site. This is a Cecil County criminal case but the same logic would apply to a civil case so it is a case personal injury lawyers really should read.
In this Cecil County case, Defendant’s girlfriend apparently had a My Space name of “Sistasouljah” who put an entry on her page that read: “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”. Without going into the details of the case, it suffices to say that this did not reflect well on the Defendant’s case.
For reasons that are unclear, the prosecutor did not try to authenticate this social media entry through the Defendant’s girlfriend although she did testify. Instead, they tried to use a police officer who, on the stand, put two and two together.
A divided Maryland Court of Appeals disagreed that the officer can authenticate a social media posting because the identity of who generated the profile is unknown. In other words, the court’s problem is that just because I put up a Facebook profile claiming I’m Charlie Sheen, it does not mean that I’m Charlie Sheen.
Judge Harrell appreciated the concern of the technical “heebie-jeebies” (yeah, he used that phrase and defined it by footnote) but believes that you can add two and two together under these facts because the heebie-jeebie concerns go to the weight to be given the evidence by the trier of fact. If the post was not the girlfriend’s post, the Defendant should feel free to argue that, in Judge Harrell’s opinion.
Both opinions attach themselves to Maryland evidence titans to support their opinions. The majority cites U.S. Magistrate Judge Paul W. Grimm’s opinion in Lorraine v. Markel American to bolster its opinion. Okay, Judge Battaglia has Judge Grimm on her side who is one of the world’s leading authorities on evidentiary issues generally and electronic evidence in particular. I’m going with Judge Battaglia.
No wait! Judge Harrell’s opinion cites Maryland evidence guru and University of Baltimore Law School professor Lynn McClain for the proposition that under Maryland Rule 5-901(a) the trial judge does not even need to be personally satisfied by a preponderance of the evidence that the proffered item is authentic. Instead, the standard is just that the judge must find that a reasonable jury could find the evidence is what the offering party claims that it is. You add this in with “sound discretion of the trial judge” and Judge Harrell’s argument wins hands down.
Who’s right? I have no idea. Read the opinion and decide for yourself.
It’s crazy to see how big a deal social media has become in the legal world these days.