Video and photographs posted to social media sites often have value for the prosecution. The challenge posed by social media evidence is authenticity and even though the law is quite well established, the application of it varies from case to case. In this article, I will review three US cases with disparate rulings. Can you spot the case that got it wrong?

In Hibbert v. State of Maryland, 2019 WL 2290320 (Court of Special Appeals), part of the prosecution’s case against the appellant was two videos he had allegedly posted to a social media account under his pimping business name. In the videos, the appellant referred to himself as a pimp and described how he manages his prostitutes. He also sent a video to one of his prostitutes in which he recorded another prostitute wearing a leash while he threatened her for disobeying him. All three videos were recovered from one of his prostitutes’ cell phone. All three videos were admitted at trial and on appeal, the appellant argued that the two social media videos should have been excluded for wont of authentication. He argued that they were not admissible under the silent witness theory as the prosecution had offered no evidence regarding how they were recorded or their reliability. At trial, an expert in digital forensics testified that he exported the videos from the cell phone in their entirety and did not alter them in any way. No evidence was offered as to the reliability of the original source of the video, namely, the social media site. The appellant conceded that he was the person depicted in the videos, that they appeared to have been posted to an account associated with him, and that the police had not edited them. Nonetheless, he argued that authentication had not been established because the expert could not say how the social media videos had been created. Given those admissions, the Court of Special Appeals ruled that the videos had been sufficiently authenticated and any issues regarding their creation were matters of weight, not admissibility. 

In Greene v. State of Mississippi, 2019 WL 3297082 (Court of Appeals), the prosecution sought to connect the appellant to a firearm through the use of a photograph and video it found on Facebook hours before the trial began. The appellant argued on appeal that the trial judge erred in allowing the social media evidence on the basis that it was not properly authenticated. The media was found by the state under a Facebook account registered to a different name. The Court of Appeals stated that a heightened level of authentication is required for electronic evidence in order to establish reliability. At trial, the prosecution relied upon the evidence of a police officer who did not know the appellant and had never seen him before court. The Court of Appeals noted that the officer was not a “witness with knowledge” and as the prosecution had offered no other evidence of authenticity, the trial judge erred in admitting the social media evidence. 

In State of Tennessee v. Spivey, 2020 WL 598347 (Court of Criminal Appeals), the prosecution relied upon a video obtained from YouTube in which the police said the appellant was wearing a watch similar to the one stolen from the victim during a murder. The police did not know who posted the video, when it was posted, whose account it was found on, if the video was reliable, or if it had been altered. All they knew was that it was found on YouTube. On appeal, the appellant argued that it should not have been admitted at trial as the prosecution had not led any evidence to authenticate it. Despite there being no actual evidence to authenticate the video, the Court of Criminal Appeals ruled it to have been properly admitted at trial, noting:

We conclude that Detective High’s testimony was sufficient to authenticate the video and the photograph. Any further argument the Appellant had regarding the ownership of the account, when or how the image was created, or whether it was a fair representation of the Appellant at the time it was taken goes to the weight the jury attributed to the images, not their authenticity.

The sum total of the detective’s evidence was that he found the video on YouTube and he believed it showed the appellant wearing a watch. None of his evidence addressed video integrity or reliability.

Analysis

In Hibbert, the appellant essentially admitted that the videos were authentic and therefore his claim about lack of authentication rang hollow. If the media is authentic, then technical information about its creation is of little moment. Greene and Spivey are contradictory rulings. In both cases, no evidence whatsoever was led as to how the images were created, their technical attributes, whether they had been edited or were reliable, and whether the accounts had any connection to the appellant. The only evidence led in both cases was that a police officer who had no prior knowledge of the appellant thought it was him. 

The law on authentication is quite well settled and has long been part of formal rules of evidence at the state and federal level in the United States and federally in Canada. Case law on authentication is also fairly well developed with social media authentication being a more recent addition. Inconsistencies in judicial rulings occur not because the law is unclear or unsettled but because the judiciary does not have a clear measuring stick to determine how much authentication is enough authentication. What is enough for one trial judge may not be enough for another. The same applies at the appellate level. Most authentication rulings will never be taken up by the state’s highest court or federally by the US Supreme Court or in Canada, the Supreme Court of Canada. As a result, there will be inconsistent rulings, even at the appellate level. Counsel and experts should always strive to meet the highest standard for authentication. The lack of any real authentication evidence in Greene and Spivey is the result of the apparent absence by the prosecution and the police of preparation, planning, and an understanding of basic legal and technical requirements related to social media evidence.