There are two steps in successfully using social media evidence (like a Facebook profile or post) from the opposing party as evidence in a trial. 

  1. First, you must convince the judge to let the evidence be considered at all.  In doing this, you must convince the judge that a reasonable juror could believe that your evidence is authentic.  Authentic means that the evidence actually is what you claim it is.  (For example, you might need to show that the opposing party really did post the information you have printed out, and it was not posted by someone who had access to their social media account.)
     
  2. Second, you must convince the fact finder (the judge or jury) that the evidence is important and really proves what you say it proves.  When evidence gets allowed (or “admitted into evidence”) by the judge, that evidence may or may not persuade the fact finder of the point you are trying to make.

Getting the evidence admitted

There is no set method or amount of proof required to convince the judge that a reasonable juror could find that your evidence is what you claim it to be.  You can provide direct forms of proof (for example, a statement by a witness who saw the person post the information) or circumstantial forms of proof (any proof that is not based on something a witness saw).

Possible ways to prove the evidence is what you say it is

You may be able to authenticate social media evidence using many different methods.  Some of these are:

  • testimony from the alleged author that he or she created the social networking profile and post(s) in question;
  • testimony from an expert confirming that the content originated from the alleged author’s cell phone, computer, or other device;
  • testimony from a witness verifying that the alleged author created the content or likely created it because of its distinct characteristics, including but not limited to:
    • Information that only the alleged author would know;
    • Text or photos that it is likely that the alleged author would post;
    • Use of a nickname or screenname connected to the alleged author;
    • Use of another language spoken by the alleged author; and
  • any additional information from the social networking website that confirms authorship.        

Some of these methods may not apply to you in your situation. You are not required to use any specific method to authenticate your evidence. You may use another method of proof to convince the judge that your evidence is authentic.

You should take photos or screenshots of your evidence. Print them out so that you can show them to the judge. Be prepared to tell the judge how and when you took the photos or screenshots and how you made copies of them for court.

The judge may ask the opposing party whether he or she created the content. That person may admit or deny creating the profile or post, and they may present some proof that it was not them. That person may object to the evidence being admitted on the grounds that it is hearsay.

Hearsay is a statement that was made out of court and is being repeated in court in order to convince the fact finder that the statement is true. If the opposing party is the alleged author of the evidence, the judge should admit the evidence as a statement of a party opponent. If another person is the alleged author of the evidence, you may need to research other hearsay exceptions so that you can explain to the judge why you think the evidence should be admitted.

Note that in small claims case (a District Court procedure for claims of under $5,000.00) there is no rule against hearsay.  However, you should still be sure to take steps to prove that the evidence really is what you say it is, in order to persuade the judge.

The opposing party may try to admit social media evidence that you do not want admitted. If that person claims that you are the alleged author, the judge may ask you whether you created the content or whether anyone else had access to your social media profile or password. You may want to present proof that it was not you.

If the opposing party claims that someone other than you is the alleged author, you may want to question the authenticity of the evidence. You may ask how and when the opposing party obtained the evidence and what proof that person has that they are authentic. You may object on the grounds of hearsay or present proof that the alleged author did not create the content.

After considering all the proof presented by you and the other party, the judge will decide whether a reasonable juror could find that your evidence is what you claim it to be. If the judge finds sufficient proof that your evidence is authentic, he or she will admit it.

If your evidence is admitted, the opposing party may still challenge your evidence at trial. He or she may argue that the evidence is unreliable, insignificant, or has another explanation. The fact finder (the judge or jury) will decide whether to rely on your evidence when it decides the case.

Source: 

Denise A. Blake

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