Court of Appeals Upholds Admissibility of Social Media Evidence Based on Circumstantial Evidence of Authenticity

The court of appeals recently decided State v. Ford, a case about the authentication of social media evidence. This is the first North Carolina appellate case to give careful consideration to the issue, and the opinion sets a relatively low bar for authentication. Because this type of evidence is increasingly prevalent, the case is an important one.

Background. The case began when a dog attacked and killed an elderly man. Suspicion fell on the defendant and his pit bull, DMX, because they lived next door to the scene of the attack and the dog had a history of aggression against other dogs and against people. After DNA evidence linked the dog to the killing, the defendant was charged with, and convicted of, involuntary manslaughter based on his negligence in allowing his dog to run free.

The social media evidence. On appeal, the defendant argued that the trial judge erred in admitting two screenshots from MySpace, showing videos of the defendant’s dog with titles and captions including “DMX THA KILLA PIT” and “After a Short Fight, he killed that mut.” The defendant asserted that the State had failed to show that he had posted the videos and had written the titles and captions, and therefore had failed adequately to authenticate the evidence.

The principal evidence of authentication was:

• The name on the account was Flexugod/7, and the defendant’s nickname was Flex.
• The account contained multiple pictures of the defendant.
• The account contained multiple pictures and videos of DMX.
• The account may have contained a rap song performed by the defendant about DMX. (The evidence seems to have been slightly ambiguous about where, exactly, the song was posted.)

The court of appeals ruled that this was sufficient, even without evidence from MySpace about the identity of the account holder, or evidence regarding the IP address from which the postings had been made:

On this record, the evidence is sufficient to support a prima facie showing that the myspace webpage at issue was defendant’s webpage. While tracking the webpage directly to defendant through an appropriate electronic footprint or link would provide some technological evidence, such evidence is not required in a case such as this, where strong circumstantial evidence exists that this webpage and its unique content belong to defendant.

Comment. The authentication of digital evidence generally, and social media evidence specifically, is the subject of a robust debate in courts across the country. Readers interested in a collection of cases on point can find one in Chapter 5 of my book Digital Evidence. Both the outcome and the reasoning of the Ford case put North Carolina in the camp of those states setting a lower bar for the authentication of such evidence. Consider:

• The court quoted and emphasized the following language from United States v. Hassan, 742 F.3d 104 (4^th 2014): “Importantly, the burden to authenticate under Rule 901 is not high—only a prima facie showing is required.”
• Similarly, the court wrote: “[T]he prima facie showing may be accomplished largely by offering circumstantial evidence that the documents in question are what they purport to be.”
• The court emphasized that the account contained “content distinctive and unique to defendant.”

The court’s approach seems correct to me. Of course, it is possible that someone other than the defendant created the account and populated it with information about the defendant and his dog, or that someone other than the defendant accessed the account, posted the videos, and wrote the titles and captions. But authentication requires only that a fact-finder could reasonably conclude that the evidence is what it purports to be, not that all other conceivable explanations for the origins of the evidence be foreclosed. And the norm with social media is that an account that bears a person’s name and contains pictures of the person, the person’s family, and the person’s pets belongs to that person, and that person is the author of the content of the account. Absent unusual circumstances, doubts about the origins of such an account or the authorship of the account’s content should go to weight, not admissibility.

There was no dissent in Ford, but the defendant may still seek discretionary review with the state supreme court, so this opinion may not be the final word in this case. And it certainly won’t be the final word on the authentication of social media evidence. Stay tuned for further developments.