Social media sites have provided both benefits and challenges to investigators, counsel, and the court. The benefits they can provide are manifold. The amount of communication that is conducted through social media platforms is staggering, largely relegating voice communication via telephone a place in the history books. Many people who use social media to communicate with each other are blissfully ignorant that their posts can be used by others for unintended purposes and by law enforcement for evidential purposes. Thus, social media platforms often contain abundant amounts of incriminating evidence. The main challenge for investigators and prosecutors is to authenticate social media content so that it can be used as evidence at trial. This case study illustrates both the benefits and challenges of social media communications. 

In State of North Carolina v. Pryor, 2021-NCCOA-421, 860 S.E.2d 341 (Table), 2021 WL 3354746 (Court of Appeals of North Carolina), the defendant was charged with several sexual offences allegedly committed against a preteen girl (Nicole). The offences came to light when Nicole’s boyfriend (Robert) hacked into her Facebook Messenger account and discovered messages between Nicole and “Steve Pryor” wherein Pryor discussed the offences he had already committed against Nicole. Robert also found explicit photos that Nicole and Pryor had shared with each other. Robert used his cellphone to video record the scrolled content that he observed on Nicole’s account. He then sent his video recording to Nicole’s mother (but not before attempting to extort money from the defendant using the video recording as leverage) who in turn contacted the police. The police video recorded the video found on the mother’s phone. To recap, the evidence the police had of the Facebook Messenger content was the police video recording of a video recording (mother’s phone) of a video recording (Robert’s phone) of the images Robert observed on a fourth device which showed the account. 

The trial judge admitted the video recording created by the police over the objections of the defense. The defense had argued that the there was a lack of proof that the “Steve Pryor” messages came from the defendant and that there was a lack of evidence regarding the original (Robert’s) video recording of the Facebook Messenger content. On appeal, the first issue was resolved in the prosecution’s favour as there was adequate circumstantial evidence led to link the defendant to the account. However, the appellate court agreed with the defense that the video recording of the account’s contents was improperly admitted at trial because the prosecution did not call Robert to testify as to its authenticity. 

Analysis

There is ample Canadian and US authority which justifies the admission of video recordings of the original content observed on another device. Earlier articles on this website have highlighted these cases. However, to gain such admission, the prosecution must present the person who recorded the content as a witness so that evidence can be led as to the completeness and integrity of the original video recording. In this case, Robert was the necessary linchpin to establish authenticity. Presenting the police recording of the mother’s device was three steps removed from the original recording and was of no value on the question of authenticity. No mention is made in the appellate ruling as to why Robert was not called to testify – only that he was not called. 

The best evidence of the contents of a social media account is a forensically sound captured version. The second-best evidence is a complete and unedited video recording of the content, but this will only merit admission if the person who recorded the video testifies as to the original content and the recording process. Anything beyond these two methods is too tenuous to achieve admissibility as was found by the appellate court in this case. Despite the exclusion of the video recording, the appellate court upheld the trial convictions as there was adequate additional evidence to justify them, in particular the testimony of Nicole.

The takeaway from this case and this article is that secondary video recorded evidence of the displayed content of a social media account is admissible but the person who created that recording must testify as to the completeness and integrity of the recording. The defendant has the right to confront the evidence against him and this means cross examining the person who created the recording, not just a subsequent person who received the recording.