Authenticating a Pseudonymous MySpace Posting

I’ve done several posts on authenticating MySpace evidence (because the issue seems to be coming up a lot). This post is about a decision from the Maryland Court of Appeals in which the court considered whether a “pseudonymous posting” on a MySpace site was properly admitting into evidence at trial.

The case is Griffin v. State, 2010 WL 2105801 (Maryland Court of Appeals 2010), and it involved Antoine Griffin’s appeal from his conviction for second-degree murder. Griffin was charged with killing Darvell Guest, who “was cornered, unarmed, in the women's bathroom of Ferrari's Bar in Perryville, where he was brutally shot seven times” on April 24, 2005. Griffin v. State, supra. Griffin’s first trial on the charge ended in a mistrial after his cousin, Dennis Gibbs, testified that he did not see Griffin “pursue the victim into the bathroom with a gun.” Griffin v. State, supra.

At Griffin’s second trial, Gibbs testified that Griffin was “the only person, other than Guest, in the bathroom when the shots were fired.” Griffin v. State, supra. Gibbs said the “discrepancy in his testimony at the two trials” was because he was threatened by Jessica Barber, Griffin’s girlfriend. Griffin v. State, supra. The defense attorney cross-examined Gibbs and seems to have tried to question his claim that he had changed his testimony because he was threatened prior to the first trial. Griffin v. State, supra.

Barber testified at the second trial: She said Griffin was “her boyfriend,” “lived with her and their two children” and went by the nickname “`Boozy.’” Griffin v. State, supra. She said she wasn’t with Griffin when they were both at the bar the evening of the shooting and while she heard gunshots she didn’t see him in the bar after the shooting. Griffin v. State, supra. The day after she testified, the prosecutor sought to introduce

five pages printed on December 5, 2006, from an Internet Web site for a MySpace profile in the name of `SISTASOULJAH,’ who was described on that Web page as a 23 year-old female from Fort Deposit. The profile page listed the member's birthday as `0-2-83.’ It contained a photograph next to the description, showing a `three-quarter view’ of an embracing couple. Counsel and the court agreed that the couple appeared to be [Griffin’ and Ms. Barber. A `blurb’ posted on the profile stated as follows:

`I HAVE 2 BEAUTIFUL KIDS. . . . FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!’

The State offered the printout to rehabilitate Gibbs's credibility, and bolster [his] claim that Ms. Barber threatened him before the first trial.

Griffin v. State, supra. The defense attorney objected to the printout, “arguing that the State had not sufficiently established a `connection’ to Ms. Barber, and had failed to question her about the MySpace profile.” Griffin v. State, supra. The prosecutor said “the profile could be authenticated as belonging to Barber through the testimony of Sergeant John Cook, the Maryland State police investigator who printed the document.” Griffin v. State, supra. The trial judge then let the defense attorney examine Sergeant Cook outside the presence of the jury, which resulted in this exchange:

[DEFENSE COUNSEL]: How do you know that this is her web page? . . .

[SGT. COOK]: Through the photograph of her and Boozy on the front, through the reference to Boozy, to the reference of the children, and to her birth date indicated on the form.

[DEFENSE COUNSEL]: How do you know she sent it?

[SGT. COOK]: I can't say that.

Sergeant Cook acknowledged that he could not determine when any particular posting was made. But, he indicated that he visited the Web site on December 5, 2006, the date that appeared on the printout.

Griffin v. State, supra. The trial judge admitted “a single, redacted page from the MySpace printout,” that contained “the photo next to a description of the page creator as a 23 year-old female from Fort Deposit” and a portion of the "blurb, stating: `FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!’” Griffin v. State, supra. When the case went to the jury, the judge gave them an instruction as to the “limited evidentiary purpose” of the printout, i.e., it was offered only insofar as it corroborated what Gibbs testified to. Griffin v. State, supra.

As I noted, Griffin was convicted and appealed, arguing in part that the trial judge erred in admitting the redacted printout. Griffin v. State, supra. The issue the Court of Appeals had to resolve was whether the printout was authenticated in accordance with Maryland Rule 5-901. Rule 5-901(a) says that “[t]he requirement of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” It then sets out examples of how evidence can be authenticated. The printout was apparently deemed to have been authenticated under Rule 5-901(b)(4), which says authentication can be based on “[c]ircumstantial evidence, such as appearance, contents, substance, . . . or other distinctive characteristics, that the offered evidence is what it is claimed to be.”

The prosecution claimed the only authentication issue was whether the MySpace page belonged to Barber. Griffin v. State, supra. As to the adequacy of authentication, the prosecution cited “the content of the profile, which included Ms. Barber's photograph, her date of birth, and the references to her children.” Griffin v. State, supra. It also said three

`other considerations support the . . . determination that the State offered sufficient authentication evidence. . . . Barber confirmed Griffin sometimes went by the nickname “Boozy,” the name used on the MySpace page. . . . Sergeant Cook's testimony should be deemed sufficient given that a MySpace website is a personal profile containing text and image content supplied not by MySpace but by the site's individual users. The judge . . . provided a detailed limiting instruction clarifying the purpose for which the statement could be used and emphasized that the MySpace page should be afforded only “such weight as [the jurors] choose to give it.”’

Griffin v. State, supra.

After reviewing the nature and uses of social networking sites, the Court of Appeals noted that users of such sites can “post messages anonymously or under pseudonyms.” Griffin v. State, supra. It also noted that this aspect of social networking sites can “present an obstacle to litigants seeking to authenticate messages posted on them.” Griffin v. State, supra. And it explained that despite the popularity of social networking sites and their

potential as treasure troves of valuable evidence, Maryland appellate courts have not yet addressed the issue of authenticating anonymous or pseudonymous documents printed from social media Web sites. . . . [N]either the Maryland Rules of Evidence nor Maryland Rules of Procedure specifically address the authentication of such evidence. Perhaps this is because courts that have generally considered the issue of authentication of electronic communications have concluded that they may be authenticated under existing evidentiary rules governing authentication by circumstantial evidence.

Griffin v. State, supra. This court reviewed decisions from other courts involving the authentication of “chat logs of instant message[s}”, but found they were not on point, since they involve “`real time’ online conversation between site members, which can be authenticated by either of the two participants.” Griffin v. State, supra. It noted that what is posted on a social networking site can be posted by someone “other than the alleged author.” Griffin v. State, supra.

The Court of Appeals ultimately decided that the printout HAD been authenticated:

The inherent nature of social networking Web sites encourages members who choose to use pseudonyms to identify themselves by posting profile pictures or descriptions of their physical appearances, personal background information, and lifestyles. This type of individualization may lend itself to authentication of a particular profile page as having been created by the person depicted in it. That is precisely what occurred here.

The MySpace profile printout featured a photograph of Barber and [Griffin] in an embrace. It contained the user's birth date and identified her boyfriend as `Boozy.’ Barber . . . identified [Griffin] as her boyfriend, with the nickname of `Boozy.’ . . . [T]he State proffered Sergeant Cook as an authenticating witness. He testified he believed the profile belonged to Barber, based on the photograph of her with [Griffin]; Barber's birth date, which matched the date listed on the profile; and the references in the profile to `Boozy,’ the nickname that Ms. Barber ascribed to appellant.

[Griffin] relies on two out-of-state cases to suggest that printouts from social networking sites must be authenticated either by the author or expert information technology evidence, neither of which occurred here. We are not persuaded. . . . . because [he] never argued below that the printout did not accurately depict the MySpace profile in question. Moreover, printouts from a company-created and controlled Web site differ materially from printouts from a social networking profile, in that site members create and control their own individual profiles. . . .

[W]e have no trouble concluding that the evidence was sufficient to authenticate the MySpace profile printout.

Griffin v. State, supra.