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Social Media Users: Beware, Your Posts May End Up In Evidence

Many of us have Facebook accounts, Instagram, or Twitter. With the growth of the internet, it is almost a rarity to know someone who isn’t on some form of social media. In fact, I find one of the first things I do on a case is to search for opposing parties on social media. Some users (not all) are quick to post any and everything. You often hear the excuse, “they can’t prove I wrote that, posted that, etc.” Well, in Ohio, they might not have to. In a recent decision handed down by the Court of Appeals for the Sixth Appellate District of Ohio, the Court held the trial court properly admitted printouts of Appellant’s and two other defendants’ Facebook pages.

In State of Ohio v. Traquawn Gibson[1], Traquawn Gibson was convicted of a double murder, among other charges. Amid the evidence submitted to the jury before they convicted him? Printouts of his and two other defendants’ Facebook pages, and photos posted on the same. On appeal, Gibson argued that the trial court erred in allowing the Facebook printouts into evidence without the State establishing proper foundation as to relevance, authenticity and authorship. The Court dismissed this assignment of error, stating that,

considering all the evidence . . . including, but not limited to, the unique street names, gang terminology, photos, artwork and gang signs utilized on the subject public Facebook profile pages in conjunction with both direct and indirect circumstantial evidence of the proposed owners’ gang affiliation—we find that substantial evidence was submitted from which a reasonable juror could conclude that the various Facebook profile pages were attributable to appellant . . .[2]

In so finding, the Court first gave a detailed analysis on a split of the courts in admitting electronically stored information. Some courts, the Court noted, set an “unnecessarily high bar” for admittance of social media evidence by not admitting such evidence unless the court definitively determines the same is authentic. Others determine whether there is sufficient evidence of authentication for a reasonable finder of fact to conclude that the evidence is authentic. The Court in Gibson found that the second, more lenient approach was the appropriate one. In this instance, it is only required that the party seeking to admit the evidence make a prima facie showing to the court of authenticity. Once that party has made a prima facie showing, it is up to the opposing party to present evidence which would raise questions as to the “genuineness of the document.” Therefore, all that needs to be presented is “substantial evidence which would allow a trier of fact to conclude that a document is authentic.” It is then up to the trier of fact to make a determination as to authenticity. The fact that a party may not be able to prove who for sure created the pages, what computer was used to create the pages, or who controlled the pages, does not necessarily prevent this evidence from being submitted to a trier of fact.[3]

Bottom line? You really should think before you post.

Allison Romelfanger is an Associate with Lardiere McNair, LLC. To learn more about Allison, please visit http://www.lmcounsel.com/allisons-bio.html.

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[1] State of Ohio v. Traquawn Gibson, CR0201301232, CR0201301115 (Lucas County 2013).

[2] The Court also opined that the fact that the user controlled the privacy on the Facebook page (i.e. a user could only see limited things) demonstrated the user “asserted control over the internal content of the website.” Likewise, what they allowed to remain on their public profile, i.e. the usernames, photographs etc., suggested the owners did not consider the pictures etc. “misleading or falsified,” which collectively, supported the “genuineness of the postings.”

[3] State of Ohio v. Traquawn Gibson, 2015-Ohio-1679, L-13-1222, L-13-1223 (6th App. Dist. Ohio, May 1, 2015).

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