14 Once the proponent presents enough evidence for a reasonable juror to find that the author was who the proponent asserts, evidence suggesting otherwise may affect the weight the jury gives the evidence but should not impact its admissibility. rul out all possibilities inconsistent with authenticity.” 13 Evidence that an imposter created the content might be a basis for admitting the evidence conditionally under Rule 104(b) or for excluding it under Rule 403, but it should not affect whether Rule 901’s threshold for authentication can be met. 12 Rule 901(a) requires only a preliminary showing that the evidence is what the proponent claims this “does not require. We submit that the permissive approach aligns better with the text of Rule 901 and is thus correct. 10 Others hold that social media evidence is just like any other type of evidence, 11 requiring only the introduction of facts from which a reasonable juror could find that the evidence was created by the purported author. Some impose a relatively high bar, requiring the proponent to all but eliminate the possibility of phony authorship.
the task of deciding the evidence’s true authenticity and probative value is left to the jury.” 7 Compared to a voicemail, a letter, or even an email, however, authenticating social media evidence can be challenging due to “the ease with which a social media account may be falsified or a legitimate account may be accessed by an imposter.” 8 Thus, lawyers must lay a foundation that addresses the “concern that someone other than the alleged author may have accessed the account and posted the message in question.” 9Ĭourts sometimes disagree on what must be shown to satisfy this concern. Federal Rule of Evidence 901(a) (and numerous state analogs) requires the proponent of evidence to “produce evidence sufficient to support a finding that the item is what the proponent claims it is.” This standard imposes a relatively low bar, requiring “nly a prima facie showing of genuineness. The jury cannot see evidence unless it is authenticated and admitted. 6 Even before trial, social media may provide strategic value-for instance, if a plaintiff’s statements on product-review forums contradict the allegations in a consumer class action complaint-that could potentially help a defendant secure pretrial dismissal.īut while social media has improved our ability to tell the jury “what really happened,” it also creates new challenges for how that story can be told. Such evidence can be useful, for example, to prove a party’s mental state or to prove that someone was in a given place at a given time-like on a ski slope days after an alleged injury.
Best supreme bot 2018 trial#
Offering instant messages, tweets, and social media posts of all types at trial is now commonplace. At the same time, however, social media evidence is uniquely vulnerable to alteration or forgery, particularly as advances in technology allow so-called “bot” accounts to create social media content autonomously. We can summon and use social media virtually instantly with smart phones-devices the Supreme Court recently called “almost a feature of human anatomy.” 4 Given social media’s pervasiveness in our culture, and the frequency with which people use it compared to other forms of communication, social media evidence is a broader and deeper trove of courtroom evidence than has ever been available before.
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These cases illustrate how social media evidence has become an important feature of modern trial practice, just as it affects how we shop, work, eat, vote, watch TV, and interact with one another. 45 caliber pistol-but no physical evidence. 2 The government secures a conviction for illegal firearm possession by offering Facebook photos of the defendant with a. 1 A plaintiff in an Internet stalking case offers the hundreds of abusive emails she received from anonymous senders after spurning the defendant’s advances. Prosecutors offer Facebook posts to show that a gang leader “green lighted” the hatchet killing of a homeless man for “snitching” on him.