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State v. Hannah – Admitting Social Media Postings into Evidence at Trial

Arnett Blake, his girlfriend Cindy Edwards, and his former girlfriend Terri Hannah, all attended a party in Vineland, New Jersey.  At some point, Edwards encountered Hannah in the bathroom.  While there, Hannah allegedly made rude remarks about Edwards.  Hannah then left the bathroom and told Blake that she should “F___ [his] girlfriend up”.  Later, when Edwards and Blake tried to leave the party, Hannah approached Blake with a closed fist.  Blake pushed her away, and security detained him.  Edwards was then going to say something, but saw Hannah holding a high-heeled shoe.  Hannah hit Edwards in the face with the shoe.  Blake saw Hannah hit Edwards.  When Hannah was escorted out, Edwards saw she was not wearing shoes.  Hannah and Edwards later exchanged communications on Twitter which included a Tweet from Hannah saying, among other things, “shoe to ya face bitch.”

Hannah was charged with simple assault and proceeded to trial in municipal court.  There, she testified that she approached Blake at the party because she heard rumors that she planned to hurt Edwards, and she wanted to be sure that Blake understood that this was untrue.  She also testified that she was escorted from the party when she started yelling, that she did not see Edwards that night, and that she never hit anyone with a shoe.  This testimony was somewhat supported by that of a security guard who removed Hannah from the party and instructed her to not return, but also did not see her hit anyone with a shoe.

The municipal judge found Hannah guilty and, after a trial de novo, a Superior Court judge did the same.  Hannah then appealed her conviction to the Appellate Division.

On appeal, Hannah challenged, among other things, the admission of the Tweet, arguing that it was not properly authenticated.  The full text of the message was “[n]o need for me to keep responding to ya stupid unhappy fake mole having ass … how u cring in a corner with a shoe to ya face bitch.”  The Tweet was accompanied by Hannah’s profile photo, and by her Twitter handle.  Edwards testified that the Tweet came from Hannah because it had her picture and handle, which she recognized.  She further testified that this Tweet was posted in response to something she had said.  Edwards ultimately captured Hannah’s Tweet as a screenshot.

Defense counsel objected to the admission of the Tweet, arguing that it could be properly authenticated only by someone from Twitter.  The municipal court disagreed, finding instead that Edwards’ testimony was sufficient for authentication purposes.

At the trial de novo, the Law Division observed that there were two approaches to this issue.  The Maryland Court of Appeals had found that there was considerable potential for abuse and manipulation of the content of social networking outlets by someone other than the content’s creator.  Accordingly, such content required greater scrutiny than paper records.  In this light, the Court set forth three possible methods of authentication.  The first was to ask the creator of the content if it was authentic.  The second was to search the computer of the alleged creator so to examine its internet history and hard drive to ascertain whether the computer was used to create the content at issue.  The third was to obtain information that would verify the content’s authenticity from the outlet or website.  In contrast, the Texas Court of Criminal Appeals had found that “the internal content of [social media postings] was sufficient circumstantial evidence to establish a prima facie case such that a reasonable juror could have found that they were created and maintained by” a particular individual.  In admitting the Tweet, the Law Division found the Maryland approach to be too strict, and adopted a rule of admissibility closer to the Texas view.

In responding to Hannah’s argument that our courts should follow Maryland’s approach, the Appellate Division stated that Maryland’s three methods of authentication are not the only ways that social media evidence can be reliably authenticated, and that there was no need to apply greater scrutiny to content from social media networks.  Rather, and more in line with the Texas view, the Court found that the rules of evidence as they currently exist are up to the task of authenticating materials from social media outlets.  Accordingly, the Court declined to create a new test for authenticating social media.  In doing so, the Court observed that a Tweet is, in essence, a “writing”, and that authentication does not require absolute certainty, or conclusive or direct proof.

Thus, and at least for now, social media postings will be authenticated using existing evidence rules.  At this juncture, our Courts appear unwilling to create special rules governing their admission, notwithstanding the fact that this mode of communication is relatively new and constantly changing.  This is one more reason to “think before you post”.  Social media postings frequently appear in discovery in criminal cases and, in light of Hannah, can be admitted into evidence with relative ease.

Criminal defense firm James S. Friedman, LLC is centrally located in New Brunswick, New Jersey.  We represent defendants in all municipal and Superior Courts throughout New Jersey.  We also represent criminal defendants in all federal district courts in New Jersey.  Finally we represents criminal defendants in the state and federal courts located in New York City.  If you have criminal charges, contact us today to discuss your case.