The rise of the internet has led to a rise in the introduction of web-based evidence in court. It is something that attorneys find themselves having to deal with on a more frequent basis. Whether it be posts from social media, published web articles, or web page archives, attorneys have had to adapt and learn to deal with such evidence for the betterment of their clients. However, the introduction of web-based evidence has led to a variety of evidentiary issues. The ever-changing nature of the internet and published web pages raises issues of authenticity and the preservation of data amongst other things. Lawyers have had to rise to the challenge of figuring out how to admit web-based evidence while avoiding relevant pitfalls in order to best advocate for their clients.
Rule 901 of the Federal Rules of Evidence deals with the authentication of evidence.[1] To satisfy rule 901, parties must produce evidence sufficient to support a finding that the item is what it purports to be.[2] Rule 902 deals with evidence that is self-authenticating.[3] However, for the purposes of this article, we will be primarily examining scenarios where evidence is not self-authenticating.
Webpages may look a certain way one day, but that may change as the website is updated with new or different information. Many websites have information that changes by the hour. For example, websites that display the news change, as new stories become available throughout the day. On social media people often have the ability to edit or delete posts they have made. Using such evidence in court can become problematic. In looking for ways to enter web-based evidence, it is important to stay creative and look for solutions to get the evidence you need admitted.
Web-based evidence such as text messages and emails may be easier to admit into evidence than other forms of electronic evidence.[4] Authentication is much easier with this type of evidence as phone numbers and email addresses can be easily corroborated and associated with relevant users. It is also less likely that other individuals have access to an individuals phone or email to fraudulently send messages. However, when it comes to social media the same cannot be said. It is much easier for individuals to impersonate people on social media and create fake accounts.[5] Authentication becomes much more of an issue. In these cases, it is much more important to have individuals who can corroborate and vouch for the authenticity of an individual’s social media account. This can be done in a multitude of ways. Individuals that are familiar with the account and its owner can testify to its authenticity and their knowledge of its authenticity. These same individuals can also be used to testify in situations where individuals have deleted or edited their social media posts. So long as those individuals have knowledge of the post at or around the time the post was made, they can vouch to its authenticity.
Situations where clients claim their social media or other relevant accounts have been hacked can also prove tricky. In such cases, you may need to use experts or call witnesses who can talk about the complexities of the internet. For example, you may want to subpoena information about the IP address used when a social media post was made to locate where exactly the post was made. However, to most people, an IP address and how it works is a foreign concept. The technicalities of the internet necessitate the need for experts to explain and simplify concepts such as these. It may also be necessary to call upon employees of the social media platform where information was gathered from. If the posts or records were subpoenaed from the social media company, you may need them to testify to the records authenticity as well.
In People v. Pierre, the defendant was accused of murder in the second degree.[6] The victim had been in an intimate relationship with the defendant and was pregnant with the defendant’s child.[7] As part of the people’s case, instant messages where the defendant had admitted he did not want the victim’s baby where brought into evidence.[8] The court found they were properly authenticated by witnesses who testified to the defendant’s screen name and to the contents of the message which made no sense unless it had been sent by the defendant.[9] A second message in which the defendant threatened to harm the victim was also similarly authenticated.[10] The court found both cases were properly authenticated by the circumstantial evidence in the case.[11]
Aside from social media, evidence can also be acquired from other websites. The issue with this arises from the ever-changing nature of websites. In some instances, websites can be preserved through website archives. Archives preserve data from websites so they appear as they were at the date and time of preservation.[12] However, the bar for admissibility tends to be higher for archived sites as they don’t always behave or look the same as their unarchived counterparts.[13] For example, if an archival website archives a post from twitter it is taking the data and storing the information related to the post. However, the functionalities of the website will not work.[14] You won’t be able to retweet, comment, or do anything you would’ve been able to do on the original website. The appearance of the website may also not look the same. This depends on the developers of the archival sites and how they’ve decided to archive the data. However regardless of how the data looks, it still holds the same information you would’ve received from the website on the date and time it was archived.[15] You would be able to see how many likes, retweets, comments, and any other information you need in relation to the archived data. Because of this some judges are reluctant to allow such evidence to be admitted. Experts are key in scenarios like this. It is important to have experts explain and simplify this for the court and jury’s understanding.
Archival websites could also lead to admissibility issues under the Best Evidence Rule. The Best Evidence Rule generally requires lawyers to present the original document or duplicates that accurately reflect the original.[16] In cases where the website appearance has changed on archival websites, this could become an issue. However, it is important to stress that regardless of appearance, archival websites store website data and information.
In State v. Phannavong, the defendant was accused of child molestation.[17] As a part of his defense, they tried to admit a map from “yellowpages.com.”[18] The map, which was supposed to be of Woonsocket, Rhode Island, did not depict the entire city.[19] The state objected to the admission of the map as a full exhibit, arguing it could not be properly authenticated.[20] In a sidebar conference, the court agreed and reasoned the defendant was allowed to testify to matters that he had knowledge of, but he could not testify to the veracity of the map.[21] The defense failed to show the map was reasonably accurate and had no witnesses who could testify to its accuracy.[22] Had the defense called a witness who could testify to things such as the scale of the map, when it was made, or other details that would have shown its accuracy and reliability, it could have been admitted. The same would be true of archived websites. Experts are needed to testify to the accuracy of the information, how the website was created or archived, how information was stored, and any other relevant information so the court can be assured of the authenticity of the information being offered into evidence.
Web-based data can be difficult to deal with. However, with proper preparation and understanding of how to tackle these issues, it is completely doable. It is important to get creative and find solutions in order to zealously advocate for our clients.
[1] FRE 901
[2] Id.
[3] FRE 902
[4] Michaela Battista Sozio, Authenticating Digital Evidence at Trial, American Bar Association: Business Law Today (Apr. 27, 2017) https://www.americanbar.org/groups/business_law/resources/business-law-today/2017-april/authenticating-digital-evidence-at-trial/.
[5] Id.
[6] People v. Pierre, 41 A.D.3d. 289, 290 (N.Y. App. Div. 1st Dep’t., 2007).
[7] Id.
[8] Id at 291.
[9] Id.
[10] Id.
[11] Id.
[12] Nicholas Taylor, A Brief Primer On Using Web-Archived Evidence, Law360, June 7, 2023 (https://www.law360.com/articles/1684538?from_lnh=true).
[13] Id.
[14] Wayback Machine General Information, Internet Archive https://help.archive.org/help/wayback-machine-general-information/.
[15] Id.
[16] FRE 1002
[17] State v. Phannavong, 21 A.3d 321 (R.I. 2011).
[18] Id at 323.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
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