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January 12, 2017 by Susana Cruz HodgeDownload PDF

Tweet at Your Own PerilSusana  Cruz Hodge

As people take to social media to run their mouths, they seemingly have no idea that their words may one day end up before a judge or jury. That’s exactly what happened in State v. Hannah, A-5741-14T3, 2016 N.J. Super. Lexis 156 (App. Div. December 20, 2016), where the Appellate Division found that tweets are admissible evidence, giving a whole new meaning to the old adage “A little birdie told me.”

In Hannah, the defendant attended a party where she ran into her ex-boyfriend and his new girlfriend. After making a few rude comments about the new girlfriend and intentionally bumping her on the dance floor, the night ultimately ended with a high-heeled shoe to the new girlfriend’s face and nine stitches. Id. at *2. Had the altercation ended there, the defendant might have gotten away with the assault. Unfortunately for the defendant, the altercation ended with a “shoe to ya face bitch” tweet. Id. at *3.

At trial, the defendant argued the tweet was inadmissible because she did not make it. The premise of defendant’s argument was that someone could have posed as her on Twitter (using her Twitter handle and photos) and without Twitter authenticating that did not happen, the tweet could not be authenticated. Id. at *8-9. The Appellate Division disagreed. In so doing, it rejected Maryland’s approach to authenticating social media posts, which outlines three possible methods of authentication:
The first method was "to ask the purported creator if she indeed created the profile and also if she added the posting in question, i.e. '[t]estimony of a witness with knowledge that the offered evidence is what it is claimed to be.'" Ibid. (citation omitted). The second method was "to search the computer of the person who allegedly created the profile and posting and examine the computer's internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question." Ibid. The third method was "to obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it."
Id. at *9 (quoting Griffin v. State, 419 Md. 343, 19 A.3d 415 (Md. 2010)). The court instead agreed with Texas’s view that “the rules of evidence already in place for determining authenticity are at least generally ‘adequate to the task.’” Id. at *10 (quoting Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012)).

Defendant argued that the Maryland approach should be adopted because tweets can be forged. Id. at *12. The court rejected this argument, stating that there is no “need to create a new test for social media postings” because “[t]he simple fact that a tweet is created on the Internet does not set it apart from other writings.” Id. at *12. This makes sense because, in fact, a letter or other kind of writing is arguably easier to forge, given that one would need a password to hack into a Twitter account (or a lot of time on his or her hands to create a fake account with stolen photos and someone else’s Twitter handle).

Ultimately, the court found that the authenticity of the tweet could be established by direct proof as well as circumstantial proof, and “Defendant's Twitter handle, her profile photo, the content of the tweet, its nature as a reply, and the testimony presented at trial was sufficient to meet the low burden imposed by our authentication rules.” Id. at *14.