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Can Social Media Evidence be Self-Authenticating?

As noted in the Tip of the Night for December 16, 2016, in December 2017 Federal Rule of Evidence 902 will be amended so that documentation generated by computer can be considered self-authenticating. There has been some speculation that social media evidence may be regarded as self-authenticating. In United States v. Browne, 834 F.3d 403 (3d Cir. 2016), the Third Circuit ruled that Facebook chats that a defendant convicted of child pornography and sexual offenses exchanged with with minors were not self-authenticating.

In this case Facebook chat logs were entered into evidence with a certificate of authenticity. The certifying custodian stated that the records were kept by Facebook, "in the course of regularly conducted activity as a regular practice." The government argued that the records were authenticated under FRE 902(11), as "Certified Domestic Records of a Regularly Conducted Activity. The Third Circuit decided that this was not the case.

The court found that social media evidence has to be subjected to a relevance assessment prior to admission. The jury must be able to find by a preponderance of the evidence that the defendants and his victims authored the messages.

The court also found that the Facebook records lacked sufficient indicia of reliability - the records custodian can't rely on the substantive contents of the communications. It can only confirm that communications took place between particular accounts at a particular time. The opinion states that, "Government's position would mean that all electronic information whose storage or transmission could be verified by a third-party service provider would be exempt from the hearsay rules."

The court did find that the messages were admissible because there was more than enough evidence to link the defendant to the chats. Minors involved in communications with the defendant testified about their communications using Facebook. DHS agents confirmed that messages were received from Facebook.

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