NMSC Rejects Heightened Standard for Authentication of Social Media Evidence

In State v. Jesenya O., the New Mexico Supreme Court examined the admissibility of a Facebook messenger session offered by the State in a delinquency hearing against a child. The district court admitted the evidence, but the court of appeals reversed, holding that the State had not shown that the message could only have come from the child. The Supreme Court reversed the court of appeals, holding that the State only needed to show that the messages more likely than not came from the child–not that they could only have come from her.

Background

This case arose out of a delinquency hearing of a 17-year-old child. The State’s theory of the case was that child, who was drunk at the time, stole her friend’s vehicle and drove it off, apparently eventually totaling it. The child’s testimony was markedly different, claiming that her friend was drunk and that she had left the car and ran away from him.

At the delinquency hearing, the state sought to introduce into evidence a series of communications between the child and her friend on Facebook messenger the day after the incident. The two had communicated primarily through messenger in the weeks leading up to the incident. The communications essentially amounted to a confession that the child was drunk and had taken the car to Clovis and totaled it. The state authenticated the messages through the friend’s testimony as to his personal knowledge of the accuracy of the screenshots and his history of messaging with Child. Child was adjudicated delinquent.

The child appealed, arguing that the messages were inadmissible, and the court of appeals reversed. The court reasoned that the State had not shown that only the child could have sent the messages, and that the child was harmed by their admission.

Analysis

For evidence to be admissible, it must be “authenticated”–that is, there must be a showing that the evidence is what the proponent claims it is. District courts are given wide discretion on the admissibility of evidence. It is unusual to see an evidentiary decision reversed, since the party appealing the decision must show both that the court abused its discretion (a very difficult standard) and that it was harmed by that decision.

Courts have struggled with authentication of social media evidence. Many courts have perceived an increased danger of falsehood and fraud posed by the relative anonymity of social media. Out of concern for this possibility, some have adopted heightened authentication standards for this type of evidence. Not surprisingly, the child advocated for such a standard in this case.

The Court cited a Maryland case as one of the leading examples of heightened authentication standards for social media. There, a district court allowed printouts of a MySpace page in based on an investigator’s testimony that the user’s profile photograph depicted her, that the birth date was correct, and that the content was related to her and her boyfriend. The Maryland supreme court reversed, reasoning that anyone could have created the site. It suggested that the state should have asked the purported creator if she had created the site and posted the information, that it should have searched her computer, or that it should have obtained information from MySpace to prove who created the site.

The Court chose to join the majority of courts who apply the normal authentication rules without any heightened standards to social media. The proponent of social media evidence is not required to remove all doubt that the information is fake. If the proponent provides enough evidence to support a finding that the evidence is what it is claimed to be, then the question of whether it is fake goes to the weight, not the admissibility.

The court offered two policy rationales in support of this decision. First, authentication of social media is not particularly different from authentication of other writings–fraud has always been a problem. Second, a heightened standard would “too often keep from the fact-finder reliable evidence based on an artificially narrow subset of authentication factors,” hindering the truth-seeking process with no discernible benefit.

Having held that the normal rules of authentication applied, the Court easily determined that the district court had not abused its discretion in admitting the evidence. The presence of the child’s picture and name on the account was not, by itself, enough. However, the friend’s undisputed testimony regarding his use of messenger to communicate with the child for weeks provided additional evidence that the friend had personal knowledge sufficient to authenticate the messages. Finally, the content of the messages also tended to show they came from child, since in the short time between the incident and the messages very few people would have been aware of the incident. The State was not required to prove that the messages could only have come from the child; rather, the fact finder could evaluate the child’s argument that someone else might have sent them.

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