Using Social Media in Family Law Cases

Frequently, Facebook, Instagram, Twitter and other social media sites provide a plethora of incriminating evidence that can be used in divorces or custody proceedings. Whether it's a picture of the teenage child using drugs, the wife caught in a compromising situation, or the identification of valuable assets, social media has made obtaining damaging information readily accessible and inexpensive. The challenge is getting that evidence admitted in a court of law.

If the evidence is obtained from the opposing party's social media account, it can easily be used as an admission of a party opponent if the opposing party is willing to admit that yes – they did make that statement. However, from time to time, that witness might think they can outsmart the legal system by claiming that they never made such an offensive statement. In this post, we will explore how to admit evidence from social media when a party denies authorship.

Rule 901 of the Texas Rules of Evidence sets forth the process for authenticating the evidence – i.e., establishing that the matter in question is what the proponent claims it to be. The rule sets forth "by way of illustration only, and not by way of limitation," examples of authentication. For example, an exhibit may be authenticated by a witness with knowledge that the evidence is what it claims to be. Texas Rules of Evidence, Rule 901(b)(1). An item can also be authenticated by establishing distinctive characteristics, such as "appearance, contents, substance, internal patterns or other distinctive characteristics...." TRE, Rule 901(b)(2).

When the opposing party or hostile witness denies making the statement on his or her social media account, the proponent of the evidence will need a witness who can testify that the computer print out of the social media is accurate. Printouts of pages from a social media website can be authenticated by establishing: 1) that the witness printed the exhibit; 2) the witness is familiar with the computer and printer used to print the exhibit; and the exhibit accurately depicts the web site as it appeared on that day. Rule 1001 Definitions (a), (c) & (d). The witness does not need to be the author of the website, but rather can testify to the fact that the pages printed from the website are accurate. Id.

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