In our last post, we began looking at the issue of social media as used in both criminal investigation and prosecution. As we mentioned, two important sets of issues that can come up with use of social media in criminal prosecution are evidentiary issues and constitutional issues.
Picking up on the evidentiary issues, one of the more prominent issues is that of authentication. The general rule of evidence is that the proponent must offer sufficient evidence so that a rational trier of factor would conclude that the communication is what the proponent claims it to be. Prosecutors often do this by using the testimony of the person who printed off the communication and who can testify to what it is, but it can also be done by calling as a witness an individual who read the communication online and who can testify to the printout’s accuracy.
One potential problem with authentication of social media can come is when the issue of alteration or manipulation of the communication is raised. Because of the possibility of hacking into accounts and manipulating communications, this is a real possibility. In addition, there may also be a question about who actually initiated the communication. When an account has been hacked into, a hacker may not only manipulate existing communications, but initiate new communications.
When there is a genuine discrepancy regarding the reliability of the communication, it is important for a defendant to provide evidence to rebut prosecution’s witness. This could include things like the person having shared his or her account password with others or information under the account having been altered, and so on.
An experienced criminal defense attorney will also have to deal with the issue of making sure the jury understands how much weight to give any such evidence at trial.
In our next post, we’ll offer some additional thoughts on evidentiary issues with social media communications, and speak a bit about privacy concerns.
American Bar Association, “The Authentication of Social Media Postings,” David I. Schoen, May 17, 2015.