Use of Digital Evidence at Trial Is Ripe for Guidance in the New Year

January 16, 2017 New Jersey Law Journal

While many were preparing to shut it down for the holidays and enjoy some holiday cheer, the Appellate Division was hard at work issuing a significant evidentiary ruling during the ordinarily subdued week before Christmas last month. In State of New Jersey v. Terri Hannah, Docket No. A-5741-14T3, decided Dec. 20, 2016, the Appellate Division tackled the requirements for the authentication of social media content at trial in New Jersey.

The social media content at issue was a tweet that supported the State's case against a defendant accused of assaulting another woman—her ex-boyfriend's then current girlfriend—with her high heeled shoe at a party attended by the trio. The tweet in question read, in relevant part, "shoe to ya [sic.] face bitch[,]" and was published under the defendant's Twitter "handle" after the alleged assault took place.

At trial, the defendant challenged the victim's account of relevant events, which included the defendant's alleged use of footwear as a weapon against the new romantic interest of her former boyfriend. While the defendant acknowledged that a verbal argument occurred at the time of the alleged assault, she denied the type of violent, physical altercation that the victim reported. The tweet was used by the State to corroborate the victim's version of events, and helped secure the conviction of the defendant. Namely, the tweet was successfully characterized as a taunting admission of the shoe assault, and, thus, at least circumstantial proof that the altercation at issue happened the way it was reported by the victim.

On appeal to the Appellate Division after her Municipal Court conviction for simple assault was upheld in a trial de novo in Superior Court, the defendant argued to the presiding Appellate Division panel that the tweet in question was not properly authenticated, and, therefore, that its admission into evidence at trial was improper. Specifically, the defendant advocated for application of a standard of authentication for social media content that has been adopted in at least one other state where the proponent of the evidence is held to a heightened authentication requirement due to some of the inherent potential for social media evidence—largely due to its format—to be more easily compromised than non-digital counterparts and, therefore, rendered unreliable. See Griffin v. State, 19 A.3d 415 (Md. 2010).

The reviewing Appellate Division panel, comprised of Judges Fisher, Leone and Vernoia, disagreed with the defendant, and held that the rules of evidence that are currently in place as to more traditional forms of evidence should apply to social media evidence as well. The panel determined that a "screenshot" of the tweet captured by the victim should be subjected to the same scrutiny as any other form of evidence for purposes of determining its authenticity, and stated, "[w]e need not create a new test for social media postings. Defendant argues a tweet can be easily forged, but so can a letter or any other kind of writing." Refusing to adopt a heightened standard of authenticity for social media evidence, the Appellate Division reasoned, "[t]he simple fact that a tweet is created on the internet does not set it apart from other writings. Accordingly, we apply our traditional rules of authentication under N.J.R.E.901." The Appellate Division panel went on to describe the indicia of authenticity that it believed surrounded the tweet, supporting its authenticity, and concluded that the tweet was properly admitted into evidence at trial.

WhileHannah now provides authoritative guidance for practitioners when seeking to authenticate social media evidence, the Appellate Division's decision is more groundbreaking, in the humble opinion of this author, for the issues that it does not address and the way that it highlights gaps that continue to remain under New Jersey law with respect to digital evidence.

The Appellate Division may have addressed lingering arguments pertaining to one form of digital evidence in Hannah, but the decision is not a one-size-fits-all, cookie-cutter framework that should transcend each and every type of digital evidence that might be encountered in a criminal case. A social media post is pretty low on the sophistication scale. It's not unlike a blog post or a journal entry. The content stands for itself, and with a proper foundation, stands on its own like the pages of a book or an article in a magazine or a newspaper. While there are unique technical components of a social media post that could be used to lend to a conclusion as to its authenticity based upon the medium used for its publication, those unique electronic components do not play the same role as they do, for example, in connection with a text message, email or a video or audio recording. In those latter examples of far more sophisticated digital evidence, metadata, classifiable according to most computer scientists as either descriptive, structural or administrative, unlocks the truth behind what appears on the surface of the evidence.

Not all digital information is one-dimensional in the same way as its paper counterparts, and therefore the parallels to the more traditional "bricks and mortar" concepts of evidentiary authentication that the Appellate Division has drawn in Hannah with respect to social media posts do not easily translate into each and every type of digital evidence, especially digital evidence of greater sophistication than a basic social media post. Thus, there remains the need for a more nuanced development of the law in New Jersey on the subject of authenticating digital evidence in contexts outside of the basic social media post example that has now been addressed by the Appellate Division in Hannah.

For example, metadata has constitutional significance that the Hannah decision fails to address. It is no less a part of a text message, email or video or audio recording than the content of those items of digital evidence. Accordingly, the holding in Hannah should not be extended beyond the social media context, where there is a clear-cut parallel to non-digital evidence.

Metadata is baked in as part of the three-dimensional composite that makes up most more sophisticated forms of digital evidence, and provides important details about the evidence that are frequently not apparent from the face of the evidence. For example, the date that a recording was made or if individuals were blind-copied on an e-message are facts only determinable, in most cases, through an analysis of metadata. Yet, too frequently, those who stand accused in a criminal or even quasi-criminal or regulatory proceeding are forced to defend themselves without this fundamental and very illuminating portion of the electronic evidence being used against them—whether due to improper collection techniques or sheer ignorance as to the existence of this third dimension of the evidence that is frequently hidden from the naked eye. How can one be said to have been given access to all of the evidence to be used against him or her, a basic component of due process as American as apple pie and fireworks on the Fourth of July, with such a fundamental dimension of the purported evidence missing?

In sum, caution must be exercised in extending Hannah beyond the basic context in which it was decided, involving the screenshot of a straightforward social media post. There are many forms of more sophisticated electronic evidence that are glaringly deficient, and, therefore, arguably inauthentic under evidentiary law, if mere facsimiles are permitted to be used as substitutes for the genuine article.

Reprinted with permission from the January 16 issue of the New Jersey Law Journal. (c) 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.