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Social media evidence should be subject to the same authentication requirements under the Del. R. Evid. 901(b) as any other evidence. The requirement of authentication or identification 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. Del. R. Evid. 901(a). Although there is a concern that social media evidence could be falsified, the existing Delaware Rules of Evidence provide an appropriate framework for determining admissibility. Where a proponent seeks to introduce social media evidence, he or she may use any form of verification available under Rule 901--including witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence in question--to authenticate a social media post. Thus, the trial judge as the gatekeeper of evidence may admit the social media post when there is evidence sufficient to support a finding by a reasonable juror that the proffered evidence is what its proponent claims it to be. That is a preliminary question for the trial judge to decide under Del. R. Evid. 104. If the judge answers that question in the affirmative, the jury will then decide whether to accept or reject the evidence. Del. R. Evid. 901(a).
On December 2, 2011, Tiffany Parker and Sheniya Brown were engaged in a physical altercation on Clifford Brown Walk in the City of Wilmington. The disagreement was over Facebook messages regarding a mutual love interest. Felicia Johnson was driving by when she observed the confrontation and later testified that Parker appeared to be "getting the best of the pregnant girl [Brown]." Bystanders eventually separated the two, but the fight resumed when Brown returned with a knife. Bystanders again intervened, and shortly thereafter officers from the Wilmington Police Department separated the women. Parker was indicted on one count of Assault Second Degree and one count of Terroristic Threatening. Parker argued that her actions were justified because she was acting in self-defense. The State sought to introduce Facebook entries that were allegedly authored by Parker after the altercation to demonstrate her role in the incident and discredit Parker's self-defense argument, which contained profanities and allegations that “this girl is crazy.” The State's exhibit depicting Parker's Facebook posts also included her picture, the name "Tiffanni Parker," and a time stamp for each entry, stating that they were posted on December 2, 2011. Brown "shared," or reposted, this Facebook post on her own Facebook page. The State used testimony from Brown, as well as circumstantial evidence, to authenticate the Facebook entries. Over Parker's objection, the trial court admitted the Facebook post into evidence, finding that the State had sufficiently authenticated it. The jury acquitted Parker of the Terroristic Threatening charge and convicted her of Assault Second Degree.
Did the trial court abuse its discretion when it admitted Parker’s Facebook posts?
The trial court specifically rejected the Maryland approach and adopted the Texas rule. At trial, the court explained that Delaware follows the "distinguishing characteristics" rationale, noting that Delaware courts have authenticated handwritten letters from inside prison based on the nicknames of the parties involved and references to the crimes. The trial court further noted that the Court of Chancery has authenticated an email through distinctive characteristics using only the sender's email address. As a result, the trial court concluded that the State had adequately authenticated Parker's social media post using witness testimony and circumstantial evidence. Having applied the same rule of law that the Court validated, it agreed with the trial court that the post was sufficiently authenticated in accordance with Rules 104 and 901. First, the substance of the Facebook post referenced the altercation that occurred between Parker and Brown. Although the post does not mention Brown by name, it was created on the same day after the altercation and referenced a fight with another woman. Second, Brown's testimony provided further authenticating evidence. Brown testified that she viewed Parker's post through a mutual friend. Thereafter, Brown "shared" the post and published it on her own Facebook page. Collectively, this evidence was sufficient for the trial court to find that a reasonable juror could determine that the proffered evidence was authentic.