Court Finds Pictures Downloaded from MySpace Inadmissible

Obtaining data and images from social networking sites (“SNS”) such as Facebook, LinkedIn and MySpace has become commonplace in civil and criminal litigation. However, issues surrounding proper authentication of this information at trial remain unresolved. The New York Supreme Court’s recent opinion in People v. Karon Lenihan, 1714/2008 (Sup. Ct., Queens Cty. Nov. 12, 2010)highlights judicial skepticism surrounding the use of SNS evidence.

Karon Lenihan was convicted of second degree murder for shooting Patrick Hernandez. Before trial, Lenihan’s attorney requested, in limine, a ruling as to whether he could cross-examine two of the People’s witnesses about their alleged gang membership by using pictures Lenihan’s mother downloaded from MySpace four days after the shooting. Lenihan alleged the photographs showed the witnesses making hand signs and wearing clothing that signified an affiliation with the Crips gang, and that the witnesses’ gang affiliation was a possible motive for them to fabricate their story and frame Lenihan. The court denied Lenihan’s motion and affirmed its decision in a written opinion on Lenihan’s post trial motion to set aside the verdict. The judge set forth several grounds for barring the pictures downloaded from MySpace, including questions regarding authenticity. Specifically, the Court held as follows:

In light of the ability to ‘photo shop,’ edit photographs on the computer, defendant could not authenticate the photographs.

The court also noted that the Lenihan did not know who took the photographs or who posted them to MySpace.

Based on the court’s ruling in Lenihan, it would be difficult for a party to authenticate a photograph or image downloaded from a SNS without first obtaining a statement or affidavit from an individual with personal knowledge as to when the original photograph was taken and that the downloaded photograph is an accurate representation of the original. However, not all courts that have addressed this issue have imposed such an onerous burden to authenticate SNS and website images. For example, in Toytrackerz LLC v. Koehler, Case No. 08-2297 (GLR), 2009 WL 2591329 (D. Kan. Aug. 21, 2009) the court noted that an image printed from a website could be authenticated by testimony from the person who printed the image that the image “accurately reflects the content of the website and the image of the page on the computer at which the printout was made.” Likewise, in kSolo, Inc. v. Catona, Case Nos. 07-5213, 08-1801 (CAS) (AGRx), 2008 WL 4906115, n.5 (C.D. Cal Nov. 10, 2008), the court admitted screenshots from a website that were accompanied by a declaration from the individual who created the screenshots attesting that the “screenshots are an accurate representation of what he encountered upon visiting the website.” Thus, litigants who intend to use SNS images in support of their case should be mindful that case law regarding the authentication of SNS images is not settled and continues to evolve.

Further discussion of the admissibility of website images can be found here.

Suzanne Herrmann Brock is an Associate on the Gibbons E-Discovery Task Force.
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