Social Media Evidence at Trial

Topics on this page:

• Steps to Successfully Using Social Media Evidence
• Getting Social Media Evidence Admitted
• Ways to Prove the Evidence is What You Say It Is
• Hearsay

Steps to Successfully Using Social Media Evidence

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

• Step 1  -  You must convince the judge to let the evidence be considered.  To do this, you must convince the judge that a reasonable juror could believe that your evidence is authentic.  Authentic means that the evidence is what you claim it is.  For example, you can show that the opposing party did post the information you have printed out and was not posted by someone who had access to their social media account.
• Step 2 - You must convince those involved in deciding your case  (the judge or jury) that the evidence is important and 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 judge or jury of the fact you are trying to prove.

Getting Social Media 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 proof (for example, a statement by a witness who saw the person post the information) or circumstantial proof (any proof that is not based on something a witness saw).

Here are some general steps and considerations:

• Authentication: You must establish that the social media content is authentic. This means that the evidence accurately shows what you say it shows. This may involve obtaining sworn statements, affidavits, or testimony from someone familiar with the account or the content you are trying to get admitted.
• Relevance: You need to demonstrate that the social media content is relevant to your case. The evidence must have some bearing on the issues involved in your case and not be prejudicial or misleading.
• Foundation: Lay the foundation for the admission of social media evidence by presenting testimony or other evidence that establishes its connection to the parties involved or the issues in the case. This may include demonstrating that the social media account belongs to the individual whose statements are being offered as evidence.

As with all evidence, you should ensure that the admission of social media evidence complies with the Maryland Rules of Evidence, particularly regarding hearsay and authentication. Make sure to provide proper notice to the opposing party regarding your intent to introduce social media evidence. This allows them to challenge its authenticity, relevance, or admissibility. You should also be prepared to address any objections the opposing party raises regarding the admission of the social media evidence.
 

Read the Law: Md. Rules, Title 5

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

Some of these methods may not apply in your situation and 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.

RECOMMENDATION: 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 they created the content. That person may admit or deny creating the profile or post. They may also present proof that it was not them. Or, they may object to the evidence being admitted on the grounds that it is hearsay.

While you are trying to get social media evidence admitted to support your case, the opposing party may try to admit social media evidence that you do not want admitted. They may submit evidence and claim that you are the author. The judge may ask you whether you created the content submitted by the opposing party or whether anyone else had access to your social media profile or password. You may need 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 challenge the authenticity of the evidence. You may ask how and when the opposing party obtained the evidence and what proof that person has that proves the evidence is authentic. You may also object on the grounds of hearsay or present proof that the alleged author did not create the content.

After considering all the proof you and the other party presented, 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, they will admit the evidence.

If your evidence is admitted, the opposing party may still challenge the evidence at trial.  They may argue that the evidence is unreliable, insignificant, or has another explanation. Ultimately, the judge or jury will decide whether to rely on your evidence when they decide the case.
 

Hearsay

Hearsay refers to an out-of-court statement made by someone other than the witness testifying in court, which is provided as evidence to prove something the witness is asserting. That is, the witness tries to prove that something is true by saying that they heard someone else say it outside of court. If the hearsay was said by the opposing party, the judge should admit the evidence as a statement of a party opponent. If someone else made the statement, 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: In small claims cases (a District Court procedure for claims of under $5,000.00), there is no rule against hearsay. However, you should still be sure to prove that the evidence really is what you say it is to persuade the judge.