Today social media is used for any and everything. People use social media to stay connected with friends and family, to promote businesses, to share memories, or just as entertainment. According to Statista.com, in 2019 seventy-nine percent of America, which is approximately 247 million Americans, maintains a social media profile. With so many people using social media every day the question arises: can social media come into the court room?
Although courts have yet to adopt a single approach to social media, the same general rules of evidence apply. That is, the evidence must be relevant to the litigation, admissible for the purpose intended, and authenticable. See Texas Rules of Evidence 105, 401,403, 901, 902 and 903. In Texas the “reasonable juror” standard is used to determine the authenticity of social media evidence. The “reasonable juror” standard requires that the provider of the evidence illustrates that the “supplied facts are sufficient to support a reasonable jury determination that the evidence he has proffered is authentic.” Tienda v. State, 358 S.W.3d 633, 639 (Tex. Crim. App. 2012). Once the provider of the evidence has satisfied this requirement, the burden then shifts to the objecting party to demonstrate that the presented evidence is in fact not authentic. Id.
The “reasonable juror standard” came from the decision in Tienda v. State. In that case, the defendant was found guilty of murder, and appealed arguing that the trial court erred in admitting his MySpace page as evidence because the State failed the defendant was the one behind the account. Tienda, 358 S.W.3d 647. The state was able to authenticate messages sent from the defendant’s MySpace page that were discussing the shooting, the investigation, and revealed threats to individuals accused of assisting in his conviction. Id. at 636. The State authenticated these posts and messages with witness testimony, testimony from a Dallas police officer, MySpace subscriber reports, as well as circumstantial evidence relating to the characteristics of the messages themselves and the defendant. Id. The Court stated that “evidence may be authenticated in a number of ways, including by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantial evidence.” Id. at 638. Because the State provided “sufficient evidence to support a finding that the exhibits were what they purported to be,” the court held the social media post were properly admitted and this test began being used to determine the admissibility of social media. Id. at 647.
In Dering v. State, the Court held that the social media posts were properly excluded from evidence. Dering v. State, 465 S.W.3d 668, 672 (Tex. App.-Eastland 2015, no pet.). In that case the appellant attempted to bring in social media posts made by third parties. Id. The Court stated that the posts were not properly authenticated because the third parties did not testify at any point during the trial. Id. The only thing provided to authenticate the posts were the names and pictures on the accounts of the posters. Id. The court reasoned that “without more, this evidence [was] insufficient to support a finding of authenticity.” Id.
To conclude, social media information is welcomed into Texas courts so long as parties comply with the rules of evidence, with the most important being proper authentication. It is important that attorneys understand this not only so they can properly educate their clients, but also so they can utilize social media findings as a weapon in the courtroom.