How do you authenticate a social media account in a criminal trial?

When Are Tweets Admissible As Evidence?

When people warn you about social media posts and their effects on your future, it’s best not to ignore them. For example, tweets exclaiming “GlenPark or get shot!!!” will not aid in the defense or appeal of a guilty verdict in a murder trial. The defendant in Wilson v. State of Indiana learned this e-Lesson the hard way.

The defendant in Wilson tweeted the aforementioned statement after robbing one stranger and shooting another dead. Furthermore, the defendant was a member of several local gangs, each of which were at odds with the deceased stranger’s gang. The issue in Wilson was whether the State properly laid the foundation to admit the defendant’s Twitter post regarding the shooting. An eyewitness testified that the Twitter account belonged to the defendant. Consequently, the Court overruled defense counsel’s objection allowed the defendant’s tweets to be admitted. After a four-day trial, the jury found Wilson guilty of all four charges against him, including murder.

Pursuant to Indiana law, the authentication of the defendant’s Twitter account would only be reversed on appeal if the Court of Appeals found that the trial court abused its discretion. Specifically, the Court in Wilson noted that, “Indiana Rules of Evidence Rule 901(a) provides that ‘To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.’” Furthermore, “absolute proof of authenticity [was] not required.”

In Wilson, the State offered eyewitness testimony to authenticate the defendant’s Twitter account at trial. In addition, there were photos posted to the account that depicted the defendant holding guns matching the description of those used in the murder. Furthermore, the defendant frequently used terms related to his gang affiliation on the Twitter account. Notably, the defendant consistently identified himself in real life by his username on Twitter. Taking all of these factors into consideration, the Court of Appeals held that the trial court did not abuse its discretion in finding that Wilson’s Twitter was properly authenticated.

Moreover, social media posts can be easily authenticated through a relatively simple analysis of the totality of the circumstances and context of the posts. Therefore, it is wise for defense counsel to advise criminal defendants to think carefully before they tweet.

Svjetlana Tesic is a magna cum laude graduate of Montclair State University, where she received her B.A. in Jurisprudence, with a minor in Business. She will receive her J.D. from Seton Hall University School of Law in 2016, where she serves as Student Bar Association President and is a member of the Moot Court Board. After graduation, Svjetlana will clerk for a trial judge of the Superior Court of New Jersey in the Passaic County Vicinage.

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