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Are Facebook and other social media postings admissible in a divorce case?

Usually, but it depends ultimately on what one can prove circumstantially about the putative writer’s connection with the social media site and to the posting.

The writer herself can authenticate what she wrote. But what if she won’t?

A computer forensics expert can do so, through proof of the process or system that results in the conclusion that a particular person wrote the posting. Ferguson v. Com., 212 Va. 745, 119 S.E. 2d 189 (1972).

But what if you don’t have the money for an expert?

In Maryland and Virginia, the rules of evidence related to the authentication of Facebook postings are not contemporary statutes, tailored specifically to pertain to social media. Instead, social media evidence is governed by rules and case law designed to deal with evidence in the old world.

Maryland Rule 5-901 (b) provides, in pertinent part: (4): Circumstantial Evidence. Circumstantial evidence, such as appearance, contents, substance, internal patters, location, patterns, or other distinctive characteristics, that the offered evidence is what it is claimed to be. Under this rule, toxicology reports, 911 emergency calls, and texts have been authenticated.

Likewise, Virginia provides that “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances, can be sufficient to authenticate.” Bloom v. Com, 34 Va. App. 364, 542 S.E.2d 18 (2001) (content of e-mail communications establishing identity). Virginia has found that computer files, digital images, and internet communications can be authenticated by description of identifying characteristics of the content and persons and/or of the process establishing them as genuine.

In 2011, the Court of Special Appeals of Maryland held that social media postings are not like texts because they are not as reliably created by the putative writer or sender, because of the greater capacity of such postings to have been fabricated by a third party. The Court went on to say that the writer or a computer forensics effort could authenticate that the putative writer wrote the posting; however, if she does not, then the proponent of the evidence could authenticate it by obtaining information, from the social networking site, “that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it.” Griffin v. State, 419 Md. 343, 19 A. 3d 415 (2011).

It should be noted that Griffin is a criminal case, and in such cases, the putative writer cannot be compelled to give testimony against himself. Outside of the criminal context, almost all social media entries can be authenticated by the writer, and the court can compel the writer to answer the question of whether she wrote the entry. However, in the rare event the writer need not or does not authenticate a Facebook entry, the proponent of the writing must be prepared to link the putative writer with the creation of the profile, and the particular posting to the writer.

In some instances, subpoenas to social media outlets will suffice. In other instances, the proponent will need a computer expert, after all. However, with adequate preparation and diligence, the lawyer will be able to prove that the writer wrote the posting, provided she actually did.

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