Delaware Adopts Less-Stringent Approach to Authentication of Social Media Evidence: The Jury, and Not the Trial Judge, Ultimately Decides

In a recent decision, the Delaware Supreme Court held a proponent of social media evidence may authenticate that evidence using the same forms of verification available under Delaware Rule of Evidence 901 to authenticate any other type of evidence, including witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence in question. In Parker v. State of Delaware, Delaware’s high court held that the trial judge may admit a social media post when there is evidence sufficient to support a finding by a reasonable juror that the proffered evidence is what its proponent claims it to be, leaving the jury to decide whether to accept or reject the evidence.

While mindful of the concern that social media evidence could be falsified, the Court rejected the higher standard for authentication adopted by the Maryland Court of Appeals in Griffin v. State that social media evidence may only be authenticated where the proponent can convince the trial judge — through the testimony of the creator, documentation of the internet history or hard drive of the purported creator’s computer, or information obtained directly from the social networking site — that the social media post was not falsified or created by another user. Rather, the Court held that the Texas approach outlined in Tienda v. State — that the jury, and not the trial judge, should ultimately resolve any factual issue on the authentication of social media evidence — better conforms to the requirements of Rules 104 and 901 of the Delaware Rules of Evidence.

Applying the rule adopted, the Court found that the subject print out of the Facebook post purportedly belonging to the defendant was properly authenticated by the State through witness testimony and circumstantial evidence, including the substance of the post referencing the underlying altercation, the timing of the post the day after the altercation, the victim’s testimony as to having viewed and shared the post on her own Facebook page, and the presence of the defendant’s name and photograph on the post. Collectively, the Court found that this evidence was sufficient for the trial court to find that a reasonable juror could determine that the proffered evidence was authentic.

The Parker opinion cites to the journal article of The Honorable Paul W. Grimm, Authentication of Social Media Evidence, 36 Am. J. Trial Advoc. 433 (2013), which contains an instructive discussion of the law of authentication of social media evidence and a valuable authentication checklist for practitioners.