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.

After the computer print out has been authenticated, the next step is to link the postings to the author of the postings. This can be done by establishing that the computer print out contains distinctive characteristics that can be linked to the author. Rule 901(b)(4) permits a tendered item to be authenticated based on distinctive qualities. When a piece of physical evidence is unique or has peculiar individual characteristics, its authentication is sufficient if a witness can testify that: 1) he/she has previously seen the object; 2) noticed its individual characteristics, and 3) recalls those characteristics.

E–mails and instant messages have been authenticated by factors such as: the return–address line, the date and time of the correspondence, the subject line, the contents and context, internal characteristics such as known speaking or grammatical usage, nicknames or specialized terms, or any other circumstances, such as conversations or events either before or after the e–mail or instant message that tend to make it more likely that this message came from a certain person. See Shea v. State, 167 S.W.3d 98, 104–105 (Tex. App. – Waco 2005, pet. ref'd).

Similarly, the connection between a particular chat–room posting and a specific person can be established by the following: 1) the screen name can be traced to the identified person, who has previously used this specific screen name in chat–room conversations; 2) the identified person responded to a request for a meeting with the person using a specific screen name, 3) the person using the screen name identified himself as "X" and that self–identification is coupled with other particularized information that applies to X, such as a street address, e–mail address, job, or personal description, 4) the identified person had information given to the chat–room participant using the specific screen name, or 5) search of the identified persona's computer hard drive shows that the user of that computer used the same screen name as the chat–room participant. See United States v. Tank, 200 F.3d 627, 630–31 (9th Cir. 2000).

Just as e–mails, instant messages, and chat room sessions can be linked to particular individuals by witnesses with sufficient circumstantial evidence to make the link, postings on social websites should also be subject to this same method of authentication.