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Florida Court of Appeal on the Authentication of Facebook Videos

Yesterday, on May 2, 2018, Judge Jonathan Gerber of the Court of Appeal of Florida, in Lamb v. State, 2018 Fla. App. LEXIS 6086 (Fla. Dist. Ct. App. May 2, 2018) affirmed the decision of a trial court to admit into evidence a Facebook video that showed a defendant charged with grand theft sitting in a stolen car with a stolen watch. The Facebook video was found on the defendants’s phone. The victim identified the defendant in the video as did a detective. The trial court initially sustained an objection to the video’s admission, rejecting the State’s position that it was self authenticating.

A digital forensic examiner downloaded the video from Facebook and testified as to its authenticity. He was unable to confirm the time at which the video was recorded but was able to determine that it was posted after the carjacking. The trial court ruled that there was a prima facie showing of the video’s authenticity. A screenshot showing the video posted on the defendant's Facebook page was also entered into evidence.

The Court of Appeal reject the argument that the trial court committed a discovery violation by not identifying the police digital forensic examiner as an expert. His testimony about how videos are broadcast and downloaded on Facebook was not sufficiently specialized.

While the Court of Appeal held that the fact that a video appears online does not make it self-authenticating, it found that there was a low threshold for its authentication. "the Facebook video provides an unbroken visual recording of the defendant for an extended period of time. . . if the video's distinctive characteristics and content, in conjunction with circumstantial evidence, are sufficient to authenticate the video, then the government has met its authentication burden." Id. at 18. Judge Gerber chose to follow the precedent set by U.S. v.Washington, 2017 WL 3642112 *2 (N.D. Ill. Aug. 24,2017), allowing the admission of social media videos in criminal cases even if the creator of the video doesn't testify; there's no search of the recording device; and the data is not obtained directly from the social media site.

An objection on the basis of the best evidence rule (which the court described as really being a 'lay opinion' objection) was also rejected because the detective and victim that identified the defendant in the video were in a better position to identify him and the stolen property than the jury.

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