Establishing ‘Friends’ Under the Rules of Evidence
Antoine Levar Griffin v. State of Maryland
No. 74, September Term 2010
Christopher R. Daily
In an Opinion authored by Judge Battaglia, the Court of Appeals, in a 5–2 decision, recently reversed a murder conviction, finding that the State failed to properly authenticate information from a MySpace profile, which was offered into evidence during trial. In doing so, the Court noted specific concern that a MySpace profile can easily be created under an alias and held that the State failed to establish the validity of the asserted creator of the profile, as well as its content, pursuant to Maryland Rule 5-901.
Factual Background in Support of the Appeal
Antoine Levar Griffin was charged and convicted in connection with the shooting death of Darvell Guest. During the trial, the State sought to introduce into evidence the alleged MySpace profile of Mr. Griffin’s girlfriend, Jessica Barber. The evidence was intended to demonstrate that Ms. Barber threatened another witness called by the State. Specifically, the profile contained the following message:
“FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”
Importantly, the State did not question Ms. Barber regarding her alleged MySpace profile while she was on the stand. Rather, the State attempted to authenticate the profile through the lead investigator in the case, Sergeant John Cook. The profile was under the name “Sistasouljah,” but Sergeant Cook identified the profile as Ms. Barber’s, because it described a 23 year-old female from Ms. Barber’s town, listed Ms. Barber’s birthday, posted a photograph of her with Mr. Griffin, and contained a reference to Mr. Griffin as “Boozy”— a nickname used by Ms. Barber.
The trial court permitted the evidence to be introduced, and the Court of Special Appeals upheld the decision. The Court of Appeals reversed upon consideration of whether the State: (1) properly authenticated the profile as being created by Ms. Barber; and (2) properly authenticated the profile’s specific content as being created by Ms. Barber, namely “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”
The Majority’s Rationale
The Court’s primary concern in reversing the decisions of the trial court and Court of Special Appeals, was that neither of those Courts gave appropriate consideration to “the possibility or likelihood that another user created [Ms. Barber’s] profile or authored the ‘snitches get stitches’ posting.” The Court noted that anyone can create a MySpace profile at no cost, provided the user has an email account and claims to be over the age of fourteen. Additionally, once a profile is created, that user can invite others as “friends,” thereby allowing other individuals unlimited access to the profile, including the ability to post information on the site.
The Court stated that an authenticity concern arises, because “anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password.” As such, the State’s authentication method of identifying the profile through Ms. Barber’s date of birth and picture on the site was insufficient, pursuant to Maryland Rule 5-901, because anyone could have created the profile and populated it with the information. Furthermore, even assuming the profile was initially created by Ms. Barber, the State’s method of authentication also failed to establish that Ms. Barber authored the alleged threat posted on the profile, and relied upon at trial —“FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”
The Court noted that the concern was not academic, and cited several cases from other jurisdictions in support of its decision. See, e.g., U.S. v. Drew, 259 F.R.D. 449 (D.C.C. Cal. 2009) (mother prosecuted after creating a fictitious MySpace profile of an adolescent boy to “flirt” and “break-up” with her daughter’s former friend, resulting in the former friend’s suicide); see also U.S. v. Jackson, 208 F.3d 633 (7th Cir. 2000) (finding that information from an organization’s website could not be authenticated because no evidence was presented to demonstrate that the information was actually posted by the organization); Commonwealth v. Williams, 926 N.E.2d 1162 (Mass. 2010) (holding that MySpace messages were not properly authenticated, because State failed to offer evidence regarding who had access to the page and whether the purported creator authored the relevant message); People v. Lenihan, 911 N.Y.S.2d 588 (N.Y. Sup. Ct. 2010) (precluding introduction of MySpace photographs stating the ability to “photo shop” images on a computer precluded the ability to authenticate the proffered pictures).
The Court reversed and remanded, finding that the State failed to properly authenticate the evidence as “what it purported to be:” a MySpace profile created by Ms. Barber, containing specific content created by Ms. Barber.
The Dissent’s Rationale
The Dissenting Opinion was authored by Judge Harrell, with Judge Murphy joining in the Opinion. The Dissent’s position was that “the picture of Ms. Barber, coupled with her birth date and location,” were sufficient “distinctive characteristics” on the MySpace profile to authenticate the evidence pursuant to Maryland Rule 5-901(b)(4). The Dissent further stated that Maryland should adopt the “reasonable juror standard” regarding authenticity, as articulated by federal courts construing Federal Rule 901, from which Maryland Rule 5-901 is derived. The Dissent reasoned that the “‘reasonable juror’ standard is consistent with Maryland Rule 5-901 — requiring only ‘evidence sufficient to support a finding that the matter in question is what its proponent claims.’”
In applying this standard, the Dissent stated that a reasonable juror could conclude the profile and its contents were created by Ms. Barber based on the information offered by the State through Sergeant Cook. The Dissent noted the Majority’s concerns regarding the potential manipulation of a MySpace profile; however, the Dissent found no motive to do so, and stated that the Majority’s apprehensions should be addressed in assessing the weight of the evidence, not its admissibility.
Authentication of Social Networking Evidence Following the Decision
As an initial matter, the Majority expressly noted that information from social networking sites can be admitted into evidence, if properly authenticated — and the Court provided non-exhaustive examples. First, the proponent of the evidence can simply ask the purported creator at trial if he/she authored the profile and associated content. Second, the alleged creator’s internet history and hard drive could be searched to determine whether the computer was used to originate the profile and posting. Finally, the Majority suggested contacting the social networking website directly to establish who initiated the profile and related content.
It should also be noted that the Majority did not completely discredit the Dissent’s “reasonable juror” standard, and, instead, stated that it was beyond the scope of issues before the Court. Specifically, the Majority discussed the “reasonable juror” standard in a series of footnotes and observed that some federal courts have resolved the uncertainty regarding social networking evidence authenticity by embracing the notion of “conditional relevancy,” pursuant to Federal Rule 104(b). The Federal Rule provides “[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” The Majority noted that federal courts have used Federal Rule 104(b) to weigh the reliability of social networking evidence against the possibility that “an imposter generated the material in question.” The Majority recognized that Maryland Rule 104(b) is “nearly identical” to its federal equivalent, and, therefore, implied that the protocol utilized by the federal courts is potentially available in Maryland as well. The Majority, however, left the issue open, finding it beyond the scope of review.
Christopher Daily is an associate in the Products Liability Group of Miles & Stockbridge P.C. He is located in the firm’s Baltimore Office, and his primary practice areas include the defense of manufacturers in product liability claims, as well as the defense of healthcare providers and institutions against medical malpractice claims.
The opinions expressed and any legal positions asserted in this article are those of the author and do not necessarily reflect the opinions of Miles & Stockbridge or its other lawyers.