In the past few years, the explosion in the popularity of smart phones, text messaging, and use of social media has dramatically altered the fabric of our lives in ways that we are only beginning to understand. It has also changed the way that sophisticated attorneys investigate and litigate criminal cases.  We all now carry with us detailed records of our conversations, photographs, and even our whereabouts in our mobile phones. For those unlucky enough to become ensnared in a criminal case, those records can become evidence of incalculable value.  This is especially so for cases of domestic violence, where the parties almost always have created a voluminous record of communications in the form of text messages and online chats by the time a contested matter goes to trial.

Unfortunately, the legal system is notoriously slow to adopt clear rules governing new technologies, and the admission of electronic communication has been no exception. In State v. Hannah, however, decided on December 20, 2016, the New Jersey Appellate Division published an important opinion that clarified the requirements for the admissibility of social media posts, including statements made on social media platforms such as Twitter and Facebook.  Hannah provides clear authority establishing that social media posts are to be treated like any other writing for authentication purposes, and that it is not necessary to produce a representative from a social media company as a witness to use a social media post as evidence.

The court’s opinion in Hannah concerned the evidentiary rule known as “authentication.”  The rule of authentication is, essentially, a screening process by which a judge makes a preliminary determination whether a document or writing is, in fact, what its proponent claims it to be. If the party seeking to admit the evidence can demonstrate to the judge that the evidence is what it is claimed to be, that evidence can then be presented to the jury, which then weighs the value of that evidence. In weighing the evidence, the jury is free to consider whether there is sufficient proof that the evidence is genuine.  The Hannah court ruled that a victim’s testimony alone can be sufficient to establish the authenticity of posts that are ostensibly written by the defendant.

In Hannah, the defendant was accused of attacking a victim with a high-heeled shoe at a party, and was ultimately found guilty of assault. One of the pieces of evidence admitted during her trial was a “tweet” – i.e. a message posted on the social media platform Twitter – that taunted the victim with the words “shoe to ya face, bitch.”  The tweet was published under a Twitter handle regularly used by the defendant and which bore the defendant’s profile photograph, but the defendant denied that she was the person who wrote that particular message. To establish that the defendant wrote the tweet, the prosecution elicited testimony from the victim that she was familiar with the defendant’s Twitter handle from prior online communications, she recognized the defendant’s profile picture on the Twitter handle as being the defendant’s, and that the “shoe to ya face” comment was delivered during a “back and forth” conversation about the incident. The victim took a screenshot of the offending tweet and presented it at trial along with her testimony regarding the circumstances in which she viewed it. The defendant’s attorney argued that the State failed to authenticate the electronic evidence, that a greater level of scrutiny should be required for social media posts sought to be admitted as evidence, and that a representative from Twitter would have to be present in court to authenticate the tweet.

The Hannah court refused to apply an extra level of scrutiny to electronic communications and social media postings, as is required in some other States.  “We need not create a new test for social media postings,” the court said. “Defendant argues a tweet can be easily forged, but so can a letter or any other kind of writing. The 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 . . . .”

If you are involved as a defendant or victim in a criminal or civil domestic violence case where electronic evidence is involved, it is best to speak to an experienced attorney about the preservation and use of that evidence.

Stahl Criminal Defense Lawyers aggressively defend individuals charged with domestic violence and criminal charges. Andrew Olesnycky, Esq.has served as the head of the Union County Prosecutor’s Office’s Domestic Violence Unit, and the domestic violence supervisor. He represents those accused of domestic violence in criminal, civil, and administrative proceedings, as well as victims of domestic violence seeking restraining orders in family court. Mr. Olesnycky’s cases have been widely covered in the news, including the New York Times, CBS This Morning, NBC4 New York, the Associated Press, the Boston Globe, NJ.com, the Star Ledger, and ESPN. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at aolesnycky@stahlesq.com.