Cases where a plaintiff, company representative, or other witness did not have some kind of social media presence are increasingly rare. They may soon disappear altogether. At the same time, cases where evidence found on social media – for example, a tweet or a comment posted on Facebook – is relevant are increasingly common.
Against this backdrop, on June 9, 2016, the Arkansas Supreme Court issued its first opinion involving the authentication and admission into evidence of Facebook screenshots. The case, Donley v. Donley, 2016 Ark. 243 (June 9, 2016), involved a guardianship dispute. The parties alleged that the mother, Temika, had been in an abusive relationship with Beasley. The abuse extended to the daughter, and an expert psychologist testified that the daughter had PTSD as a result of the abuse. Temika claimed she had ended the relationship with Beasley and sought to terminate the guardianship.
At trial, Temika was confronted with screenshots of numerous comments she appeared to have posted on Beasley’s Facebook page, including comments posted over a year after she claimed to have ended the relationship, and right before and right after she petitioned to remove guardianship. The most recent comment read, “Boo, when are you coming home?” Temika testified she made this comment, that photographs contained on the Facebook pages were photographs of her, and that all of the comments were made under her name. She also testified that she did not remember making some of the comments and that the Beasley may have used her account to make the comments.
The Arkansas Supreme Court affirmed admission of the Facebook screenshots into evidence. Rule 901 of the Arkansas Rules of Evidence governs authentication. Under Rule 901(b), both the testimony of a knowledgeable witness that a matter is what it is claimed to be and circumstantial evidence tying a party to the evidence are acceptable and proper methods of authentication. The Court concluded, “Here, Temika testified that ‘Meka Rochelle’ was the name on her Facebook account, and all the comments were made under that name. She identified the photographs contained on the Facebook pages as photos of her, and she testified that she posted the comment on Beasley’s Facebook page on June 7, 2014. Under these facts, we cannot say that the circuit court abused its discretion in admitting the screenshots into evidence.”
Given the Court’s previous holding that text messages are properly authenticated using circumstantial evidence (see Gulley v. State, 2012 Ark. 368, at 15, 423 S.W.3d 569, 579 (2012)), this result is not surprising. As a practical matter, it reinforces the importance of securing and preserving social media evidence, affirms the use and admission into evidence of “screenshots” at trial, and amplifies the need to establish through testimony and other evidence as many facts tying the alleged author the alleged content as possible.
The full Donley v. Donley opinion can be found here.