This post examines an opinion from the Superior Court of New Jersey – Appellate Division: State v.
Hannah, 2016 WL 7368984 (2016). The court begins by explaining that
[d]efendant Terri Hannah appeals her
July 10, 2015 conviction for
simple assault after a trial de novo in the Law Division, following her conviction in municipal court.
She argues that a Twitter posting
was improperly admitted into evidence, citing a Maryland case requiring that
social media postings must be subjected to a greater level of authentication.
State v. Hannah, supra.
The court begins by explaining how the case arose, noting
that the Law Division
found the following facts based on the
testimony in the Vineland Municipal Court. On September 22, 2012, Arnett Blake
and his girlfriend, Cindy Edwards, attended a party at a community center.
Defendant, Blake's ex-girlfriend, also attended the party.
While in the bathroom, Edwards
encountered defendant `making rude comments about her.’ While Edwards was still
in the bathroom, defendant exited the bathroom, approached Blake, and said `I
should F your girlfriend up.’ Later that night, defendant purposefully bumped
into Blake.
As Edwards and Blake were in the lobby
trying to leave the party, defendant quickly approached Blake with her closed
fist in the air. Blake reacted by pushing defendant away, prompting security to
grab him. When Edwards turned to say something, she saw defendant holding a
high-heeled shoe, with which defendant struck Edwards in the face. Blake also
saw defendant hit Edwards with a shoe as he was being escorted outside. When
defendant was brought outside, Edwards saw defendant did not have her shoes on.
Edwards and Blake went to the police
station to report the incident and then went to the hospital, where Edwards
received nine stitches. After the assault, defendant and Edwards had
communications `back and forth’ on Twitter.
On December 28, 2012, Edwards saw defendant posted a tweet saying `shoe to ya face
bitch.’
State v. Hannah, supra.
The opinion then explains that
[i]n municipal court, defendant offered
a different version of events. Defendant testified she approached Blake and
told him that she heard `hearsay . . . saying that [she] was going to . . .
beat his girlfriend up.’ Defendant told Blake she `wanted to clear the air and
let him know that [she was] not going to do anything to [his girlfriend].’
Later during the party he `push[ed] [defendant] to the side.’ Defendant later
saw Blake in the lobby and decided to ask him why he pushed her. She became
aggressive and started yelling, and a security guard took her `straight out . .
. of the party.’ Defendant testified she never saw Edwards that night and never
punched anyone or hit anyone with a shoe.
Defendant called as a witness a
security guard at the party, who testified he saw defendant approaching a man
`in an aggressive manner’ and heard her make hostile remarks. `[B]efore she
could do anything,’ the guard `snatched her up and . . . took her out of the
building.’ He told her she was not permitted to reenter the party. He did not
see Blake or Edwards or see defendant hit anyone with a shoe.
State v. Hannah, supra.
The Appellate Division concluded its initial outline of what
happened to bring this case, and the issue it presented, before the court:
Defendant was charged with aggravated assault, but the charge was downgraded to simple assault, a disorderly persons offense
New Jersey Statutes Annotated 2C: 12-1(a)(1) offense. On January 12, 2015, the
municipal court found defendant guilty and
imposed a $307 fine plus costs and assessments. Defendant appealed. On June 5,
2015, the Law Division conducted a trial de novo, hearing oral argument. After
reserving decision, the Law Division found defendant guilty of simple assault and
imposed the same monetary penalties. The Law Division credited Edwards and
Blake, found defendant not credible, and found the passage of two years
compromised the security guard's recollection of the event.
State v. Hannah, supra.
Hannah made a number of arguments on appeal, but this post
only examines one of them:
Defendant argues a message sent on Twitter should not have been
admitted as it was not properly authenticated. `[C]onsiderable latitude is
afforded a trial court in determining whether to admit evidence, and that
determination will be reversed only if it constitutes an abuse of discretion.’ State
v. Kuropchak, 221 N.J. 368, 385–86, 113 A.3d
1174 (2015) (citation omitted). `Under that standard, an appellate court should
not substitute its own judgment for that of the trial court, unless “the trial
court's ruling `was so wide of the mark that a manifest denial of justice
resulted.’”’ Ibid. (citation omitted). We must hew to our
standard of review.
The municipal court and the Law
Division each admitted as Exhibit S–4 the following tweet allegedly posted by defendant
on December 28, 2012: `No need for me to keep responding to ya stupid unhappy
fake mole having ass.. how u cring in a corner with a shoe to ya face
bitch.’ The tweet displayed
defendant's profile photo and defendant's Twitter handle, `@cirocgirl25.’
State v. Hannah, supra.
The opinion then went on to explain that
Edwards testified she recognized the tweet as being written by
defendant because it displayed defendant's picture. She also was familiar with
defendant's Twitter handle,
`@cirocgirl25.’ Moreover, Edwards testified the tweet was posted `in response to things that [Edwards] was
saying’ and they were communicating `back and forth.’
On December 28, 2012, Edwards went onto
defendant's Twitter page,
saw the posted tweet, and
captured it as a screenshot.
Defendant testified the Twitter page displayed a picture
of her and her Twitter handle.
However, she testified she did not author the tweet.
When the State sought to admit the tweet, defense counsel objected,
arguing `[t]here's no way anybody besides Twitter can say that this came from [defendant].’
`In admitting the tweet, the municipal court ruled
nothing “requires somebody to be here from Twitter. I think somebody can testify as to it as Ms. Edwards
[did] and we go from there.’
State v. Hannah, supra.
The court then took up the methods that could be used to
authenticate a social media post:
At the trial de novo, the Law Division classified the methods of authenticating
a social media post into two camps: the Maryland approach and the Texas
approach, respectively citing Griffin v. State, 419 Md. 343,
19 A.3d 415 (2011), and Tienda v. State, 358 S.W.3d
633 (Tex. Crim. App. 2012).
In Griffin, the Maryland
Court of Appeals considered what the test should be for the authentication of
printed pages of a MySpace profile. Griffin, supra, 19 A.3d
at 416–17. Citing `[t]he potential for abuse and manipulation of a social
networking site by someone other than its purported creator and/or user,’ Griffin ruled
that images from such a site require `greater scrutiny’ than `letters and other
paper records.’ Id. at 423–24 (concluding that `a
printout of an image from such a site requires a greater degree of
authentication’). The court suggested three possible methods of authentication. Id. at
427.
The first method was `to ask the
purported creator if she indeed created the profile and also if she added the
posting in question, i.e. “[t]estimony of a witness with knowledge that the
offered evidence is what it is claimed to be.’” Ibid. (citation
omitted). The second method was `to search the computer of the person who
allegedly created the profile and posting and examine the computer's internet
history and hard drive to determine whether that computer was used to originate
the social networking profile and posting in question.’ Ibid. The
third method was `to obtain information directly from the social networking
website that links the establishment of the profile to the person who allegedly
created it and also links the posting sought to be introduced to the person who
initiated it.’ Id. at 428.
State v. Hannah, supra.
The opinion then outlines the other method, explaining that
in
Tienda, the Texas Court of
Criminal Appeals did not employ any of the three Griffin methods
but concluded `there are far more circumstantial indicia of authenticity in
this case than in Griffin—enough, we think, to support a prima
facie case that would justify admitting the evidence and submitting the
ultimate question of authenticity to the jury.’ Tienda, supra,
358 S.W.3d at 647. The Texas court found `the internal content of .
. . [the] MySpace postings—photographs,
comments, and music—was sufficient circumstantial evidence to establish a prima
facie case such that a reasonable juror could have found that they were created
and maintained by’ a particular individual. Id. at 642.
State v. Hannah, supra.
The opinion then explains that
[h]ere, the Law Division found `[t]he
Maryland approach is too strict in its authentication requirements,’ stating
that its three methods `are unrealistic for a party to fulfill’ and `create a
higher bar than originally intended by the Rules.’ Accordingly, the Law
Division `chose[ ] to adopt a rule of admissibility more similar to the Texas
approach.’
Defendant argues that Texas follows the
Maryland approach and that we should adopt the Maryland approach with its `three
non-exclusive methods’ of authentication. Id. at 647. We
reject any suggestion that the three methods of authentication suggested in Griffin are
the only methods of authenticating social media posts. We also reject Griffin's suggestion
that courts should apply greater scrutiny when authenticating information from
social networks. See Parker v. State, 85 A.3d
682, 686–87 (Del. 2014) (rejecting the Griffin `greater
scrutiny’ approach and `conclud[ing] that social media evidence should be
subject to the same authentication requirements under the Delaware Rules
of Evidence Rule 901(b) as any other evidence’); see also United
States v. Vayner, 769 F.3d 125, 131 n.5 (2d Cir. 2014) (noting
that Griffin requires `greater scrutiny’ and stating `we are
skeptical that such scrutiny is required’).
Rather, we agree with Tienda's observation
that
[c]ourts and legal commentators have
reached a virtual consensus that, although rapidly developing electronic
communications technology often presents new and protean issues with respect to
the admissibility of electronically generated, transmitted and/or stored
information, including information found on social networking web sites, the
rules of evidence already in place for determining authenticity are at least
generally `adequate to the task.’
[Tienda, supra, 358 S.W.3d
at 638–39 (citation omitted).]
Indeed, `jurisdictions across the
country have recognized that electronic evidence may be authenticated in a
number of different ways consistent with Federal Rule 901 and its
various state analogs.” Id. at 639.
`Despite the seeming novelty of social
network-generated documents, courts have applied the existing concepts of
authentication under Federal Rule 901 to them,’ including `the reply
letter doctrine [and] content known only to the participants.’ 2 McCormick
on Evidence § 227, at 108 (Broun ed., 2013), New Jersey Rule of
Evidence 901 `generally follows Fed. R. Evid. 901’ and incorporates both
of those methods for authentication. Biunno, Weissbard & Zegas, Current N.J.
Rules of Evidence [Biunno], 1991 Supreme Court Committee
Comment & comment 3 on N.J.R.E. 901 (2016).
State v. Hannah, supra.
The court then explained that
[w]e need not create a new test for
social media postings. Defendant argues a tweet can be easily forged, but so can a letter or any other
kind of writing. The simple fact that a tweet is created on the Internet does not set it apart from
other writings. Accordingly, we apply our traditional rules of authentication
under N.J.R.E. 901.
Though in `electronic’ form, a tweet is a `writing.’ See N.J.R.E. 801(e).
`The requirement of authentication of writings . . . and the recognized modes
of proving genuineness have been developed by case law over two centuries.’ Biunno, supra,
comment 1 on N.J.R.E. 901 (2016). `Over the years authentication requirements
have become more flexible, perhaps because the technology has become more
commonplace.’ Suanez v. Egeland, 330 N.J..Super. 190,
195, 749 A.2d 372 (App. Div. 2000).
State v. Hannah, supra.
The court then began the process of formulating and
announcing its ruling on the authentication issue:
N.J.R.E. 901 provides:
`The requirement of authentication or identification as a condition precedent
to admissibility is satisfied by evidence sufficient to support a finding that
the matter is what its proponent claims.’ Authentication “`does not require
absolute certainty or conclusive proof’—only ‘a prima facie showing of
authenticity’ is required.’ State v. Tormasi, Super. 146,
155, 128 A.3d 182 (App. Div. 2015) (quoting State v.
Mays, 321 N.J.Super. 619, 628, 729 A.2d 1074
(App. Div.), certif. denied, 162 N.J. 132,
741 A.2d 99 (1999)). `This burden was not designed to be onerous.’ State
v. Hockett, 443 N.J.Super. 605, 613, 129 A.3d
1116 (App. Div. 2016).
‘Courts are inclined to assess their
role in authentication as that of a screening process[,]’ and ‘will admit as
genuine writings which have been proved prima facie genuine . . . . leaving to
the jury more intense review of the documents.’ Konop v. Rosen, 425 N.J.Super. 391,
411, 41 A.3d 773 (App. Div. 2012) quoting Biunno, supra,
comment 1 on N.J.R.E. 901 (2011)). In a bench trial, as
here, `considering the judge's dual role with regard to its admission and
weight, the better practice in such a circumstance will often warrant the
admission of the document and then a consideration by the judge, as factfinder.’ Tormasi, supra,
443 N.J. N.J.Super. at 156–57, 128 A.3d 182.
State v. Hannah, supra.
The opinion goes on to explain that
[a]uthenticity can be established by
direct proof—such as testimony by the author admitting authenticity—but direct
proof is not required. Biunno, supra, comment 2 on
N.J.R.E. 901 (2016); on N.J.R.E. 903. `A prima facie showing
may be made circumstantially.’Konop, supra, 425 N.J.Super. at
411, 41 A.3d 773. `Such circumstantial proof may include demonstrating
that the statement “divulged intimate knowledge of information which one would
expect only the person alleged to have been the writer or participant to have.”’
(Ibid., quoting Biunno, supra, comment 3(b) on N.J.R.E. 901 (2011)).
Here, the tweet contained
several such details, including `shoe to ya face,’ information that one would
expect only a participant in the incident to have.
Additionally, under the reply doctrine,
a writing `may be authenticated by circumstantial evidence establishing that it
was sent in reply to a previous communication.’ Mays, supra,
321 N.J.Super. at 629, 729 A.2d 1074; see Biunno, supra,
comment 3(c) on N.J.R.E. 901 (2016). Here, Edwards testified that the tweet was posted in response to
her communications with defendant, as part of a `back and forth’ between them.
Moreover, the tweet said
there was `[n]o need for me to keep responding to ya,’ apparently referring to
Edwards who received a `shoe to ya face.’
State v. Hannah, supra.
The court then articulated its ruling on the authentication
issue, explaining that
[d]efendant's Twitter handle, her profile
photo, the content of the tweet,
its nature as a reply, and the testimony presented at trial was sufficient to
meet the low burden imposed by our authentication rules. Those facts established
a prima facie case `sufficient to support a finding that the matter is what its
proponent claims.’ N.J.R.E. 901. Other courts have admitted tweets applying their similar
authentication standard. See Wilson v. State, 30 N.E.3d
1264, 1267–69 (Ind. Ct. App. 2015); Sublet v. State, 442 Md. 632,
113 A.3d 695, 720–21 (2015); see also 5 Weinstein's
Federal Evidence: Discovering and Admitting Computer–Based Evidence §
900.07[4A] (Joseph M. McLaughlin ed., 2016).
Defendant argues the Law Division cited
not only the State's evidence but also defendant's testimony in the municipal
court that the tweet bore
her picture associated with her Twitter account. However, she cites no
authority precluding the Law Division from considering the uncontested fact
that the tweet bore
defendant's photo and Twitter handle,
which was established through the testimony of Edwards as well as defendant.
State v. Hannah, supra.
The court then began its ruling on the issue of
authentication:
In the municipal court, defendant
testified `[a]nybody can make a fake Twitter page and put your name on it and put something on
there.’
She testified that because she deleted
her Twitter account
months before, someone could have taken the same Twitter handle and used it. After the municipal court
did not credit this claim, defendant tried to bolster her testimony by
submitting new evidence to the Law Division, including printouts of Twitter policies showing that Twitter `is currently unable to
accommodate individual requests for inactive or suspended usernames.’ The Law
Division cited that policy as one of several reasons for finding that defendant's
testimony was not credible and that she `did not actually delete her Twitter account and that she did,
in fact, author and publish the Tweet
in question.’
Defendant now argues it was improper
for the Law Division to rely on evidence that was not before the municipal
court. Notably, defendant herself presented the Twitter policies to the Law Division and did not object to
the court's consideration of them. Therefore, she must show at least plain
error. However, she fails to show the court's consideration of the policies was
`clearly capable of producing an unjust result.’ R. 2:10–2.
There was ample other evidence supporting the court's decision not to credit
defendant's denial that she wrote and posted the tweet.
The Law Division, like the municipal court,
provided sufficient reasons for finding the tweet authentic, relevant, and
admissible. Defendant's remaining arguments regarding authentication lack
sufficient merit to warrant discussion. R. 2:11–3(e)(2).
Accordingly, we find no abuse of discretion in admitting the tweet.
State v. Hannah, supra.
No comments:
Post a Comment