2023 - Volume 2 - Summer - Flipbook - Page 6
-Social Media: Continued from page 5-
into evidence. But what if the plaintiff called a witness
to dispute the photograph? This witness testifies that
the defendant told this witness, "I have never been to
the Grand Canyon. And on January 1st, I drove across
my neighbor's lawn." Is the photograph still authenticated? We have conflicting testimony, but could a jury
believe the defendant and not the plaintiff's witness?
In other words, is the defendant's testimony (if believed) "sufficient to support a finding" that the photograph is what he claims it is? Yes, such conflicting
testimony goes to the weight of the evidence, not
its admissibility. See, e.g., McAllister v. George, 73
Cal. App. 3d 258, 261 – 263 (1977).
evidence sufficient to support a finding that the item is
what the proponent claims it is.”
Suppose, for example, a plaintiff sued his neighbor
for allegedly driving his red truck across (and damaging) the plaintiff's front lawn on New Year's day. The
defendant denies liability on the ground that he (and
his truck) spent the New Year's holiday visiting
the Grand Canyon. The defendant offers into evidence
an undated photograph of himself standing beside his
truck overlooking the Grand Canyon. Is the photograph relevant? Unless there is some evidence that the
photograph was taken on January 1st, it proves nothing about the defendant's whereabouts on the day in
question. The photograph would likely excluded because it's irrelevant.
California's Evidence Code identifies a number of
ways in which a writing can be authenticated. It can be
done by introducing evidence that the party against
whom the writing is offered previously admitted or
acted as though the writing was authentic. Cal. Evid.
Code § 1414. A writing can be authenticated by the
content itself, by the proponent introducing "evidence
that the writing refers to or states matters that are unlikely to be known to anyone other than the person
who is claimed by the proponent of the evidence to be
the author of the writing." Id., § 1421. Even with various examples of establishing authenticity, California's
Evidence Code expressly states that "[n]othing in this
article shall be construed to limit the means by which
a writing may be authenticated or proved." The Federal Rules of Evidence likewise provide examples of
how evidence may be authenticated, but Rule 901
states that it is "not a complete list[.]"
But suppose the defendant testifies that
the photograph was taken on New Year's day. The defendant has offered testimony that makes the photograph relevant. Is it now admissible? What
about authenticating the photograph itself? Doesn't the
defendant need the photographer? What about a chain
of custody? Is an expert witness required to show that
the camera that took the photograph was in good operating condition? Attorneys often assume that authenticating a writing is a significant task—that there is
some terrifyingly strict standard to authenticate writings, photographs or recordings. To understand how
simple it is, it is important to understand exactly what
the rules require. As mentioned earlier, Federal Rule
of Evidence 901 requires that the proponent of the
writing "produce evidence sufficient to support a finding that the item is what the proponent claims it is."
California has the same standard: "Authentication of a
writing means ... the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is[.]"
Cal. Evid. Code § 1400. This "sufficient to sustain a
finding language" means that the judge does not decide whether he or she is persuaded that the document
is what the proponent claims it is, but rather whether a
reasonable jury could do so.
When it comes to social media, the same authentication rules apply. Whether the evidence is a written
message, photo, or video, the proponent of the evidence has to make a sufficient showing that the evidence is what it is claimed to be. An example of this is
found in People v. Valdez, 201 Cal. App. 4th 1429
(2012). In Valdez, the defendant Vincent Valdez was
convicted of attempted murder, and his sentence was
extended for gang enhancements. During trial, the
prosecutor introduced pages from, what appeared to
be, Mr. Valdez's MySpace page. The page included
photographs and written notations showing Mr. Valdez's affiliation with gangs and violence. Id. at 143334. On the page's "interest" section, Mr. Valdez purported to write that he enjoyed "Mobbing the streets
and hustling, chilling with homies, and spending time
with my mom." Id. at 1434. An investigator for the
prosecution testified that he printed the pages a year
prior to the attempted murder when he was doing Internet searches for individuals associated with local
Returning to our New Year's hypothetical, the defendant could simply testify: "This is a photograph
that was taken of me on New Year's day at the Grand
Canyon." This testimony could be "sufficient to sustain a finding" that the photograph is what the defendant claims it to be (i.e., a photograph of the defendant
taken on New Year's Day). Thus, the photograph has
been authenticated and would be properly admitted
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