2023 - Volume 2 - Summer - Flipbook - Page 7
clothing and in an apartment that matched the photos
that were posted online. Id. The defendant argued that
admitting the photographs was in error because there
was no testimony from anyone who actually took the
photograph or actually uploaded the picture to Instagram. The Court rejected the argument: "The evidentiary foundation 'may—but need not be—supplied by
the person taking the photograph or by a person who
witnessed the event being recorded.' In addition, authentication may be supplied by other witness testimony, circumstantial evidence, content and location' and
other means provided by law[.]" Id. at 293, citing People v. Goldsmith, 59 Cal. 4th 258, 268 (2014).
-Social Media: Continued from page 6-
gangs. Id. The investigator explained that a person's
MySpace pages were "accessible publicly without a
password, but only the person who has created that
MySpace profile, or a person who has a password for
the page, may upload content to it or manipulate images on it." Id. The investigator further admitted that "he
did not know who uploaded the photographs or messages on Valdez's page, who created the page, or how
many people had a password to post content on the
page." Id. The trial court admitted the MySpace page
for the limited purposes of (1) corroborating a victim's
testimony that he recognized Valdez from the
MySpace site, and (2) the prosecutor's gang expert,
who relied on the evidence as a basis for the opinion
that Mr. Valdez was an active gang member.
Typical Evidentiary Analysis
Assuming the social media evidence is relevant
and authentic, the evidence should be analyzed like
any other piece of evidence. There may be hearsay
challenges or other reasons to exclude the evidence
(such as improper character evidence or privacy issues). These issues have been covered in prior articles,
for example, here and here.
After his conviction, Valdez appealed the court's
admission of the MySpace evidence. The Court affirmed, and the Court reiterated the standard for authenticating evidence: "[T]he fact that the judge permits a writing to be admitted in evidence does not necessarily establish the authenticity of the writing; all
that the judge has determined is that there has been a
sufficient showing of the authenticity of the writing to
permit the trier of fact to find that it is authentic." Id. at
1434-35. The Court explained that "like any other material fact, the authenticity of a document may be established by circumstantial evidence." Id. at
1435, citing Chaplin v. Sullivan, 67 Cal. App. 2d 728,
734 (1945). The Court reiterated that there was nothing special about social media evidence, but instead
the same authentication rules applied: "The author's
testimony is not required to authenticate a document (§
1411); instead, its authenticity may be established by
the contents of the writing (§ 1421) or by other means
(§ 1410)[.]" Id. at 1435. Valdez was "free to argue"
that the pages were not authentic, but regardless "a
reasonable trier of fact could conclude from the posting of personal photographs, communications, and other details that the MySpace page belonged to
him." Id.
Conclusion
The above rules are important and can help litigators and trial lawyers handle admissibility questions
related to social media. If the above article was helpful, be sure to share it ... on your favorite social media
platform.
Dave Sugden
is a shareholder at Call & Jensen.
Dave is an ABOTA member and has been recognized
from 2020 - 2023 as one of the “Top 50 Super Lawyers in Orange County.” This past June, the Trial Attorneys selected Dave as its California Trial Lawyer
of the Year. Dave Sugden is the founder of Evidence at
Trial (evidenceattrial.com) and provides courses and
teaching videos for attorneys.
A similar result can be found in In re KB, 238 Cal.
App. 4th 989 (2015). In KB, the Court reviewed another criminal conviction where photographs uploaded to
Instagram were admitted in evidence. An officer had
been using Instagram to follow various criminal suspects. Id. at 992. When the officer saw photos posted
online of the defendant holding firearms inside an
apartment, he confirmed his address and probationary
status (i.e., the defendant was not allowed to possess
firearms). Id. The defendant was arrested wearing
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