Authenticating- Admitting Twitter Posts | Cohn Lifland Pearlman Herrmann & Knopf LLP
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Authenticating- Admitting Twitter Posts

cell-phone-1245663-1-768x512.jpgIn State v. Hannah, the question on appeal was whether a twitter post (the "Tweet") allegedly written by defendant was admissible as evidence. The State authenticated the evidence through the victim's testimony confirming that the tweet was written by defendant because it displayed defendant's picture next to the Tweet, the twitter handle was known to belong to defendant and that the Tweet was a response to an on-going back and forth conversation between herself and defendant. On appeal to the Law Division, the court noted that there were two possible methods of authenticating social media posts, the Maryland approach and the more lenient Texas approach. The Maryland court held that the potential for abuse and manipulation of a social networking site by someone other than the account's creator required that such writings be subject to a greater degree of authentication than other writings. The Texas court held that circumstantial evidence, such as the internal content of the social media platform (i.e. - photos and past comments), were enough to allow a reasonable jury to determine the writing's authenticity.

On appeal to the Appellate Division, defendant argued that the Law Division improperly relied upon the more lenient Texas approach to authenticate the Tweet. However, the Appellate Division agreed with the lower court that the Maryland approach was too strict and that social media posts do not require a greater level of scrutiny than other writings submitted into evidence. The court held that electronic postings can be properly authenticated in a variety of ways established by N.J.R.E. Rule 901. Authentication does not require absolute certainty or conclusive proof, only a prima facie showing of authenticity is required. The necessary prima facie showing can be made circumstantially, which includes proof that the statement divulged intimate knowledge of information that only the writer could be expected to have. Accordingly, the court found no abuse of discretion in admitting the Tweet.

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