Letters / E-mails / Texts / Social Media

In the previous section, we discussed the accuracy of pictures, audio recordings and videos. In this section, we turn to the accuracy of digital communication in the form of e-mails, text messages and social media. It is particularly helpful in understanding the admissibility of these types of communications by studying the cases chronologically. Before there was social media, there were text messages. Before the prevalence of text messages and cell phones, there were e-mails. And before e-mails there were simply letters, colloquially referred to as snail mail. Thus, this chronological section begins with one of the first cases dealing with e-mails and ends with one dealing with social media (Tienda) and text messages (Butler). 

Ronnie Tienda, Jr. was convicted of murdering David Valadez during a shootout on a Dallas highway and sentenced to 35 years.  In the months leading up to the trial, the victim’s sister showed the prosecutors three “Myspace.com” accounts that she believed belonged to Tienda.  Via subpoena, the State obtained subscriber information for these three accounts.  Using the victim’s sister as the sponsoring witness, the State sought to introduce several screenshot printouts from the account, photos posted on the profiles, comments and instant messages, and two music links posted to the profile page. The printouts were properly authenticated pursuant to 901(b)(4) based on their distinctive characteristics in combination with these facts: 
●    The numerous photographs of the Defendant with his unique tattoos, eyeglasses and earrings;
●    The reference to the Victim’s death in that the posted song was the same one from the victim’s funeral;
●    The references to the Defendant’s own gang;
●    The messages referring to a shooting at a location involved in the crime with a named witness;
●    The messages referring to a witness as a snitch;
●    A reference to the fact that the Defendant had been on a leg monitor for a year coupled with the picture of the Defendant wearing it; 
●    All of which were tied through MySpace records to e-mail accounts and profile names associated with the defendant.
The exhibits were properly authenticated - "accurately depicted" in our 4-step analysis - even though the account could have been spoofed and the circumstantial facts used by the Court to authenticate the account were publicly available and therefore not solely within the defendant’s knowledge. The court was most persuaded by the united force of these facts, “taken as a whole with all of the individual, particular details considered in combination,” in concluding not that the defendant in fact created the account and made the statements, but that a rational jury could conclude that he did. 

In support of their arguments in favor of authenticating a social media account (this case involved MySpace, but the same analysis would apply to whatever social media account might be at issue), the Tienda court also gave the practitioner several other forms of authentication the practitioner may consider when confronted with mediums of evidence similar to social media like text messaging, e-mail, or internet chat: the purported sender actually admitted ownership, was seen composing it, the business records of an internet service provider or cell phone company showed that the message originated with the purported sender’s person computer or cell phone under circumstances indicating only the purported sender would have access to the computer or cell phone, the information was proven to be uniquely known by the defendant. So long as there are sufficient circumstances to support a finding by a rational jury that the exhibits are what the proponent claims them to be, evidence of this type is authentic.