Our courts have established how social media postings, including Texts, Twitter, Facebook, and other social media postings may be authenticated for admissibility in court. Authenticating such evidence is “flexible” and only requires a prima facie showing for authentication. New Jersey Courts are given “considerable latitude” in admitting digital communications and social media at time of trial. Digital and social media postings may be authenticated as any other “writing” under New Jersey Rule of Evidence 901.
Despite the ease in which digital media may be manipulated, our courts have rejected an argument for a higher standard for authentication. A combination of circumstantial factors related to digital communications or social media postings, including context, prior communications, expressing specific knowledge of an event/issue, profile information, and photographs may establish sufficient authentication. Social media and digital communications have become a rich source of information for litigation. Authentication of digital communications and social media postings are possible through direct proof, circumstantial evidence, contents/knowledge, replies, and other miscellaneous methods of establishing reliability as any other form of writing.
There are no secrets on the internet. Today people willingly post the most personal and sometimes embarrassing information about themselves, their families, their friends, and believe it or not, even their co-conspirators. Today people email and text each other without concern that those writings might be read aloud in court. If the Government was involved in investigating and compiling the detailed information that people willingly disclose, it would be accused of invading privacy and being “Big Brother.” It is remarkable as to the extent people willingly and recklessly surrender their privacy to the internet without a second thought.
People post photographs and comment about incidents that involve potential civil lawsuits, criminal investigations, custody issues, and/or criminal charges. People document in texts, messaging, and emails, admissions against their interest that can come back to haunt them.
In this new digital world people “drink and type,” “drink and post,” engage in digital gossip, conduct their own investigations, try to make identifications, and create a record that may be damaging to their personal interests or the interests of friends. It is not unusual for reckless digital communications and postings involving incidents involving drugs, physical assault, “sexting,” or other criminal activity. The posting of naked photos or videos of people smoking marijuana, or being obviously intoxicated at a party may seem funny, but not be the wisest action if there is a related criminal investigation, child custody, or if the subject is seeking employment. It sounds obvious, but people disregard the obvious and document things they shouldn’t in their digital communications, in their posts, and do so at their peril.
In today’s digital world, investigations begin with reviewing the public social media of the target of an investigation or witnesses to an incident being investigated. Digital communication and social media postings are an invaluable source for the collection of evidence.
It is therefore appropriate that in every case counsel should consider whether there may be digital evidence documented on social media and consider:
- Warning clients not to send anything digitally that they would not want read out loud in court and not post anything on any social media platform regarding any pending civil matter, investigation, or criminal charge;
- Determine if your client knows of digital communications or posts by other individuals that are relevant to a disputed matter. If so, find out the nature of the digital communication, the post(s), how your client is aware of its existence, so that as counsel you may determine what steps, within counsel’s ethical constraints, be taken to review and/or preserve such information;
- While any civil, family law, or criminal investigation is pending counsel should caution the client that it is preferable not engage in any social media activity without first discussing the issue with counsel;
- Ascertain all social media platforms and digital communications platforms used by a client so that counsel may, if necessary, review any the communications and postings to assess the significance of such content and whether the information may be adverse/problematic in the representation;
- As to existing digital communications and posts, clients should be told that there may be a duty to preserve the evidence and therefore the client should be counseled not to delete information.
- Once sent or posted, digital information can frequently be recovered. Screen shots of anything on a smart phone may be taken and preserved. The deletion of digital communications and posts may be spoliation of evidence. Clients may not necessarily know or understand whether information sent digitally or posted on social media helps or hurts their interest. Counsel is in the best position to determine the significance of digital communications and social media postings and how such evidence should be handled;
- If a client has posted information related to an investigation or litigation, until counsel has conducted a full investigation, the best practice is to simply direct the client to revise all settings to be to the narrowest level of access permitted by the platform. Counsel should then immediately review the information for relevance, preservation, and to determine how it can best be addressed;
- If there is any potential for administrative, family law, civil, or criminal litigation, any digital communications or social media activity that are material to the underlying events should be discussed with counsel. At the earliest possible stage counsel must find out from the client what is out there, who created it, what it means, and how best to protect the client’s interests.
The “digital communication conversation” and the “social media conversation” between counsel and client should be conducted at the earliest stage of any representation where digital communications and/or social media may be a source of evidence.
Counsel must be cautious because the deletion of evidence, the improper accessing of social media information through misrepresentation or fraud, can have serious ethical implications for counsel and may have serious personal exposure for a client.
For information on authentication of digital information, please see the following sources:
- State v. Berry, 471 N.J. Super. 76 (App. Div. 2022)(Admissibility of Facebook postings as business records)
- Dynamics, Inc. v. Master, No. A-0952-17T3, 2019 WL 962839, at *8 (N.J. Super. Ct. App. Div. Feb. 26, 2019) (email “distinctive contents reasonably support their authenticity”);
- Angeles v. Nieves, No. A-2302-15T4, 2018 WL 3149551, at *6 (N.J. Super. Ct. App. Div. June 28, 2018) (foundation for admissibility of Facebook photos);
- State v. M.F., 2018 N.J. Super. Unpub. LEXIS 41, 2018 WL 333493 (Admissibility of Screen Shot of Text Messages in a Domestic Violence Hearing)
- State v. Hannah, 448 N.J. Super. 78 (App. Div. 2016)(Twitter Postings)
- New Jersey Rules of Evidence, N.J.R.E. 901, Commentary, Gann Law Books
- Admissibility of Digital Evidence, Federal Bar Association, CLE Video Re-Broadcast | January 12, 2017, 2 HR CLE (2:00 pm – 4:00 pm Eastern)
- Fundamentals of Trial Techniques 3rd Edition, by Thomas A. Mauet;
- Evidentiary Foundations, by Edward J. Imwinkelried, Lexus/Nexus Publishing, (2014, Ninth Edition)
Eric Marcy, Esq., is Of Counsel at Lyons & Associates, P.C., with Offices in Somerville, Morristown, and Freehold. His practice areas include criminal, domestic violence, civil rights, professional licensing, health care, and administrative law.
Mr. Marcy has been a member of the New Jersey Association of Criminal Defense Lawyers since 1987. He served as a Trustee of the NJ-ACDL from 2001 to 2010.
Mr. Marcy served as an instructor for the Institute of Continuing Legal Education Criminal Practice “Skills and Methods” program for newly admitted attorneys from 2000 to 2009.
Mr. Marcy has been selected for inclusion in New Jersey Super Lawyers® lists 2006-2009, 2017 to the present.
He is also an authorized attorney under the New Jersey State PBA Legal Protection Plan, representing law enforcement officers in administrative, civil, and criminal matters.