In this modern age—perhaps now more than ever —our population is using social media to connect with one another by sharing pictures, articles, and other various communications through social networking platforms such as Facebook©, Instagram©, and Twitter©. As our society has continued its increasing use of social media, the issue has led to a growing topic in the legal landscape. Specifically, courts have grappled with the introduction of social media as evidence in litigation.
In a recent opinion, State of Maryland v. Hayes Sample, No. 54 September Term, 2019, the Court of Appeals of Maryland considered the standard for admitting social media evidence in a criminal case. Hayes Sample was one of two individuals involved in an attempted armed robbery of a liquor store in Towson, Maryland. Sample was charged with attempted armed robbery, first-degree assault, as well as various other handgun related charges. Sample’s alleged accomplice, Claude Mayo, was shot and killed by the store owner in self-defense. In its case against Sample, the state introduced evidence connecting Sample and Hayes through their Facebook© profiles, as well as evidence that Sample “unfriended” Mayo on Facebook© shortly after the crime and Mayo’s death.
The Circuit Court allowed the Facebook© records into evidence over the defense’s objections. After the trial, the jury found Sample guilty of various charges, including attempted armed robbery and first-degree assault. Sample appealed to the Court of Special Appeals, which reversed the Circuit Court and remanded the case back for a new trial. The state then appealed to the Court of Appeals, which granted certiorari and reversed the decision of the Court of Special Appeals, affirming the Circuit Court decision to admit the Facebook© evidence.
Standard of Proof for Authentication of Social Media Evidence
In its analysis, the Court of Appeals noted the standard of proof to authenticate social media evidence is by a preponderance of the evidence under Md. Rule 5-901(b)(4). There must be sufficient circumstantial evidence for a reasonable juror to find that it is more likely than not that the social media evidence is what it is purported to be.
The Facebook© profiles included in the social media records produced at trial included cities familiar to both suspects Sample and Mayo. The username associated with one of the profiles was “SoLo Haze.” Although not an exact match to the defendant’s name, the Court found it persuasive that Haze was a homophone of Sample’s first name. Additionally, there were “friends” connected to the profiles who were associated with both Hayes and Sample. Finally, the email address registered to the SoLo Haze profile was email@example.com, which clearly included Samples’ last name. Because the Facebook© profile in question contained sufficient distinctive characteristics linking it to Sample, the Court determined the trial court had properly held a reasonable juror could find that it was, in fact, Sample’s profile. The Court further reasoned the evidence showing Sample owned the profile constituted strong evidence in itself that he was responsible for the action of unfriending Mayo on Facebook©. This apparent attempt to disassociate himself from Mayo after the crime was circumstantial evidence of Sample’s guilt.
Although Sample arose in a criminal law context, the evidentiary principles established apply equally to the authentication of social media in a civil context. Thus, when seeking to authenticate social media evidence in a workers’ compensation claim, it is important to present proof upon which the finder of fact may rely to reasonably conclude that the social media evidence is what it is purported to be. To this end, it may be a valuable pursuit for employers and insurers to seek to unearth additional background information related to a workers’ compensation claimant such as prior residences, nicknames, known associates, etc. While at first, this information may not be directly relevant to the workers’ compensation claim, it could be a useful tool to authenticate social media evidence that does relate to the work accident or injury in question.
Written by associate Megan Berey.