In a recent criminal appeal, a judge examined the standard that New Jersey should use to authenticate a Twitter tweet as evidence in a trial. It was decided that the existing rather low burden-standard in New Jersey is sufficient.
Defendant Hannah was convicted of simple assault in municipal court, after being charged with aggravated assault. On appeal, she requested that a twitter “tweet” should not have been entered as evidence, because it did not fulfill the right authentication rules of evidence.
The evidence at the trial showed that Hannah assaulted the girlfriend (Edwards) of her ex boyfriend (Blake) at a community party. Hannah was making rude comments about Edwards while she was in the bathroom. The ex then approached Blake and said, “I should F your girlfriend up.” Later that evening, Hannah deliberately bumped into her ex-boyfriend. When 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 her away, prompting security to grab him. When Edwards turned to say something, she saw Hannah holding a high-heeled shoe, with which defendant struck her in the face.”
Blake also saw Hannah hit his girlfriend with the shoe as he was being escorted outside. The couple went to the police and reported the incident – Edwards went to the hospital, where she got nine stiches. After the incident, Hannah and Edwards had communications back and forth on Twitter. On December 28, 2012, Edwards saw a tweet posted by Hannah which read in part “shoe to ya face bitch.” Hannah gave a completely different version of events that claimed that she was provoked and pushed by the ex-boyfriend. She also said she never saw Edwards that evening, and never punched anyone or hit anyone with a shoe.
She was found guilty in the municipal court of simple assault and ordered to pay a $307 fine, plus court costs and other charges. She appealed to the Law Division, which found the same as the trial court. It found that Hannah’s credibility was lacking and the credibility of the victim and her boyfriend was much higher.
On appeal, Hannah claimed that the admission into evidence at the trial of her tweet was improper, because the prosecutor failed to properly authenticate it. Authentication is a legal evidence term that mandates that any piece of evidence must be shown to be a true document according to specific rules, depending on what the piece of evidence is (i.e. a letter, an e-mail, a murder weapon, etc.). The purpose of the rule is to prevent forged/false evidence from being considered at a trial.
Twitter is a social media platform where individuals are assigned usernames and can post comments with 140 characters. People can interact directly with each other, as was the case here.
At the trial, the following tweet was admitted as 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.” Edwards, the new girlfriend, “testified she recognized the tweet as being written by Hannah because it displayed her picture. She also knew Hannah’s Twitter handle, “@circogirl125.” Edwards also testified that the tweet was a response to a back and forth conversation between her and Hannah. She captured the tweet with a screenshot.
Hannah claimed that she did not write the tweet. At the first appeal, the Law Division listed the methods of authenticating a social media post in two camps, the Maryland approach versus the Texas approach. Under Maryland’s rule, there are three methods to authenticate, 1) ask the person if that was their post; 2) search the computer of the person for internet history/hard drive; 3) get information directly from the social media site. Any one of these may be enough.
Under Texas’s rule, if there is enough circumstantial evidence to establish that a reasonable member of a jury could conclude that the social media was created and maintained by the individual, it will be considered authenticated. (i.e. photos, music, personal information, comments). The Law Division felt that the Maryland approach was too strict and that the three methods “are unrealistic for a party to fulfill.” So it adopted for New Jersey a rule similar to the Texas approach.
The Appeals Court judge agreed with the less stringent approach. The fact that a tweet is a writing on the internet does not set it apart in a new category from any other writing, such as a letter. Both can be just as easily forged. New Jersey law, like Texas’, says that authentication only requires a showing that a reasonable member of a jury could conclude that the evidence is authentic based on the facts.
So the tweet was found to be properly authenticated. 1) the “shoe to ya face” comment is information only a participant to the event would have; 2) it was part of a conversation, or series of tweets; 3) the Twitter handle contained Defendant’s profile photo and the tweet and was specific to the events that led to the criminal charge. Any one of these might be enough to authenticate the tweet by itself. Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.