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The curious case of getting Facebook printouts authenticated at trial

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Written by James Vitale, Associate at Thrasher, Dinsmore & Dolan, a legal professional association.

I’m out for revenge. My girlfriend decided to break up with me (over text message, no less) saying she had too much going on in her life to devote the time necessary to our relationship. She is in year two of a nasty divorce where everything is being contested: child custody, pet custody, assets, child support, spousal support, who gets old Aunt Mildred’s spoon collection, etc… Being the selfish and vindictive person I am, I combine my character flaws with a rudimentary knowledge of social media to create a fake Facebook page in the name of my ex-girlfriend. I post pictures of her and her family; I list where she works, where she lives, and her hobbies; I request and receive friend requests from people she knows; I post fictitious comments in her name about the raise she received at work, how drinking a beer or two before picking the kids up from soccer practice is no big deal, and how I really couldn’t stand old Aunt Mildred and that I’m really a spork enthusiast. Vaguely remembering something about an enemy of an enemy is my friend, I decide to call her husband (since they are going through a divorce with no chance of ever getting back together, I’ll refer to him as her ex-husband) a day before the divorce trial is to begin to give him a heads up about the page. A light bulb appears over the ex-husband’s head and he prints out every questionable and incriminating piece of content his hard drive can handle. Said ex-husband brings those printouts to his divorce trial. I, being a less than scrupulous human being, sit in the public gallery and wait for the fireworks. We’ll pause this story here.

At this point, I’m sure anyone reading this is saying to themselves: (a) I hope the guy writing this didn’t really do these things, and (b) there is no way those printouts of a Facebook page are going to be admitted in the divorce proceedings. The good news is I used what little creativity and imagination I have to make up the preceding story. The bad news is, if the story was real and the ex-husband was willing to stoop to such a low level, there is a good chance those printouts would be admitted for the fact finder (a judge in this case, but a jury in many others) to later weigh the authenticity of the printouts when deciding on the merits of the case.

“Jiggery pokery” you say. “Injustice” you shriek. My years of legal education and practice lead me to this response: “Yep.” (I promise, I won’t bill for that). But that doesn’t change the fact those printouts have a good chance of being admitted into evidence.

I now hear the attorneys and legal types reading this blog post shouting: “Show precedents! Stop with the attempts at entertaining everyday writing and start boring me with case citations and dense legal language.” I’ll meet you half way (I’ll leave it to you to decide which half).

In Ohio, preliminary questions of admissibility are governed by Evid.R. 104. In short, evidence needs to be relevant and authentic to be admitted. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Evid.R. 401. Relevant evidence is admissible under Evid.R. 402. Let’s assume, since the story above revolves around a divorce proceeding, that posts about income, children, and poor Aunt Mildred are relevant to the action.

We now turn to authenticity. The authenticity requirement is satisfied by “evidence sufficient to support a finding that the matter in question is what the proponent claims.” Evid.R. 901(A). According to Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D.Md.2007) and its Ohio progeny Adams v. Disbennett, Third Dist. Hancock No. 9-08-14, 2008-Ohio-5400, State v. Gibson, 6th Dist. Lucas Nos. L-13-1223, L-13-1222, 2015-Ohio-1679 and State v. Paster, 8th Dist. Cuyahoga No. 100458, 2014-Ohio-3231, the ex-husband, as the proponent of the evidence, needs only a prima facie case showing the printouts are authentic. The only requirement is that there be substantial evidence from which the trier of fact could infer that the document was authentic. To make things even easier, circumstantial evidence, as well as direct, may be used to show authenticity.

Once the prima facie showing is made to the court that the document is what the proponent claims (i.e. his ex-wife’s Facebook page), the burden of going forward with respect to authentication shifts to the opponent (i.e. the ex-wife) to rebut the prima facie showing by presenting evidence to the trier of fact which would raise questions as to the genuineness of the document. Since authentication is a question of conditional relevancy, the trier of fact ultimately resolves whether admitted evidence is that which the proponent claims. (See State v. Gibson, supra, 2015-Ohio-1679).

With the rules in place, let’s play this scenario out. The ex-husband, by way of his attorney, presents the Facebook page printouts at trial and the ex-husband testifies that: (a) the pictures are of his ex-wife and their children, (b) the information listed about his ex-wife’s employment, hobbies, favorite moves, love of sporks, etc… is true, (c) her Facebook friends are friends, old classmates, and acquaintances of his ex-wife, and (d) the posts contain personal information about his ex-wife and their family.

So what is the ex-wife to do now? Accuse the ex-husband of forging the page? Show that she has another Facebook page that is genuine and her real profile? Hire an expert to testify that the Facebook page in question was created at an IP address she has no access to? Does the judge really want to have a mini-trial on the authenticity of the Facebook page when she has a litany of child support, custody, asset, spousal support, and asset division issues to decide?

The ex-wife’s counsel brings up the issue of the redundant Facebook pages and the differences in grammar and style between the ex-wife’s real page and the fake page but, with limited time and without the ability or funds to secure an expert at the last minute, the judge cannot lose another day or two of trial on one evidentiary issue with so many other substantive issues left unresolved. In the interest of judicial efficiency, and over the strenuous objections of the ex-wife’s counsel, the judge finds the Facebook printouts to be relevant and that substantial evidence was submitted by ex-husband from which the trier of fact could conclude that the various Facebook profile pages and content were attributable to the ex-wife. The judge, as the trier of fact, will weigh the authenticity of the Facebook printouts when determining the merits of the case.

Uh oh. I hear those legal types again screaming out words and phrases like “perjury” and “failure to disclose evidence before trial.” “Excellent issue spotting” I say. “Bravo” for poking holes in this hypothetical. Unfortunately, in my experience, and especially in the family law context, being sandbagged by evidence of dubious authenticity at trial, which ends up being admitted, happens (e.g. “your honor, we just discovered said evidence last night and were unable to notify counsel until this morning.”). And, heading down the perjury and ethical violation road is ninety nine percent of the time a post-trial journey.

So what have real Ohio courts done when faced with the introduction of printouts of Facebook pages and instant messages? In State v. Paster, supra, 2014-Ohio-3231, the Eight District Court of Appeals found that the trial court did not abuse its discretion when admitting a craigslist ad printout, Facebook account printouts, and cell phone records that were authenticated by direct testimony of individuals who printed the ad and Facebook posts. In Adams v. Disbennett, supra, 2008-Ohio-5400, the Third District Court of Appeals found that the trial court did not abuse its discretion when admitting printouts of instant messages between the parties. The plaintiff, the proponent of the evidence, authenticated the instant messaging documents through testimony as to the genuine nature of the screen names used, that the messages were not altered, that the printout is what was viewed on the computer screen, and that the messages contained information that would have been private between the plaintiff and defendant. The defendant’s rebuttal testimony stated only that she could not recall typing the messages and that her computer was disposed of before commencement of litigation. Finally, in State v. Gibson, supra, 2015-Ohio-1679, two gang unit detectives testified as to the genuine nature of printouts taken from purported gang members’ Facebook pages. The detectives stated that they did not know for sure if the defendant created the Facebook pages in question or if the defendant had control over the Facebook pages. However, the trial court found, and the Sixth District Court of Appeals upheld, that the detectives’ testimony linking the content of the pages, unique usernames, gang signs utilized and photographs to the defendant supported the genuineness of the postings such that substantial circumstantial evidence was submitted from which a reasonable juror could conclude that the various Facebook profile pages were attributable to the defendant.

So, what have we learned (other than my writing is a little too cute for it’s own good)? One takeaway is that relevant social media content has a very low threshold to overcome to be admitted into evidence at trial. If you are the proponent of the evidence, you simply need a witness that created the evidence or one that is familiar enough with the evidence to identify it and “connect the dots” for the trier of fact to show the material is genuine. If you are seeking to have the evidence excluded based on its authenticity, and unlike the hypothetical above you are not sandbagged at the last minute, it would behoove you to dig into the source of the content, by subpoena and/or expert, to discover evidence that will assist in raising questions as to the genuineness of the documents. Hopefully such evidence will prevent the proponent from reaching the low prima facie threshold allowing the evidence to be admitted.

And, lest anyone think our learned judge in the above case would rule on the side of the unjust, she admitted the Facebook printouts but did not believe a word of the ex-husband’s testimony and put no weight behind them when issuing her ruling. Since karma was on the side of the ex-wife, she got Aunt Mildred’s spoons. As for me (not the real version, the fictitious evil boyfriend version), I received my comeuppance in the form of falling down a time warp rabbit hole where I repeat the first day of law school and the bar exam over and over again in perpetuity. A more frightful and just remedy for such a despicable act I could not imagine.