Credibility of Social Media and its Volatile Impact in the Courtroom
In modern society, social media has taken over our lives. Beginning in 2003, social media has become the main source of communication, news, and interaction for our society, according to Jason Riddle in an article for the Arkansas Journal of Social Change and Public Service.[1] A recent study by the Pew Research Center found that 64.5 percent of the 2.4 billion internet users “receive breaking news from Facebook, Twitter, YouTube, Snapchat, and Instagram instead of traditional media.”[2] The numbers continue to rise. The Global Digital Report 2019 by Hootsuite and WeAreSocial showed a 9 percent increase year-on-year of social media users worldwide, with a current total of 3.484 billion users[3]. We are living in a social media world.
It is impossible to ignore social media’s impact on the legal system, specifically regarding admittance as evidence. According to Leslie Ellis, in Friend or Foe? Social Media, the Jury and You, many litigators have begun asking jurors, during voir dire, to disclose social media posts[4]. This phenomenon has not gone unnoticed in the judicial process. In a 2014 decision by the United States District Court, Central District of California, the Court ruled a Facebook screenshot as inadmissible when the defendant attempting to admit the screenshot failed to provide supporting circumstantial information[5]. The courts have acknowledged the immense power of social media and its need to be checked, reviewed, and properly managed before being admitted into trial as evidence that may potentially affect lives or businesses.
Social media has the ability to deceive, and the most recent U.S. election is a quintessential example. In Sam Sanders’ NPR article, Did Social Media Ruin Election 2016?, Todd Grossman, CEO of Talkwalker Americas stated, “Social media may have played a role in creating a kind of scandal-driven, as opposed to issue-driven, campaign, where topics such as Trump’s attitude towards women, Trump’s tax returns and Clinton’s emails have tended to dominate discussion as opposed to actual policy issues[6].” Sanders adds, “So, if Twitter is a bunch of Post-it notes thrown on the ground, we now have to consider which of these notes are even real[7].” This is a key example of how social media has not only flooded the world with information, but drowned it in potentially misleading and fake news.
What is more alarming is society’s blind belief in false evidence. In her article for Miappi.com, Lauren Askew points out, “the same sensationalism that makes gossip go from one neighbor to the next, until the whole village knows, makes fake news travel the world in a matter of minutes.[8]” Remember the massive false rumor that alleged Hillary Clinton and her top aides ran a child-trafficking ring out of a Washington pizza parlor. On December 2016, Gregor Aisch, Jon Huang and Cecilia Kang wrote Dissecting the #PizzaGate Conspiracy Theories for the New York Times. The rumor, dubbed #PizzaGate, snowballed from fake news articles emerging on Twitter and Facebook. According to the article, “Tens of thousands of individuals subscribed to message boards, feeding into theories with fake news reports and crowd-driven detective work.[9]” Responsiveness to social media is a powerful yet alarming phenomenon.
Given the volatile nature of social media, the biggest issue regarding social media and the legal system is hearsay. California Code of Evidence Section 1200(a) defines hearsay as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Most of all social media used in court is exactly that: hearsay. Social media evidence used in court typically involves an individual or a group of people talking in a group messaging app, posting a photo of an event, or updating a status, which are later used to prove the truth of a matter without being present in the court. However, attorneys, as well as the courts, are finding social media evidence admissible under numerous hearsay exceptions. In the 2011 criminal case, People v. Oyerinde, the defendant’s Facebook messages were used to convict him of a first-degree murder[10]. The prosecutor argued that these Facebook messages were “party admissions,” and the court upheld this argument. According to Denise G. Callahan, in her article Social Media Posts Admissible in Court, in 2011, a Butler County prosecutor provided Facebook images of 18-year-old Lance Tiernan, accused of murder, wearing a “T-shirt with brass knuckles and a notation on his page that he ‘likes’ the movie ‘Fight Club,’” as evidence that the defendant had a “tendency” for violence. Josh Gilliland in his article The Admissibility of Social Media Evidence, found that attorneys are beginning to argue that Tweets are admissible under the “state of mind” exception, and checking in to locations on Foursquare or Yelp falls under the “present sense impressions” exception.
The danger here is the prejudice that hearsay social media introduces to the trier of facts. Because social media is a new frontier, the law surrounding its admittance as evidence is shallow, and it may be the reason that hearsay exceptions have so easily admitted possibly prejudicial social media evidence. John Gillilan quotes Ohio Supreme Court Justice Judith Lanzinger, who stated that the “courts are in the ‘wild, wild west’ in terms of dealing with new technology.” Justice Lanzinger acknowledges that there is “great risk that social media can be used purely for prejudicial, and arguably irrelevant, reasons in litigation.” However, just like all other evidence admitted in court, the probative value must outweigh the potential prejudice. Simply because the law surrounding admitting social media as evidence is shallow, we, as officers of the court, cannot abuse the rule. We need to provide guidance and discipline in this new area of law. It requires our diligence and practice to shape the procedures allowing admittance. The law as it stands now is volatile. According to Denise G. Callahan, the defense attorney in the Butler County Lance Tiernan criminal case found that if Tiernan simply denied the credibility of the social media photos and messages, the evidence would not have been allowed. We must push the courts to be stringent on admitting this type of evidence. Continuing education needs to be provided to attorneys in this new area of law to prepare them. Ultimately, we must strive to use our discipline and practice to shape the path for the inevitable storm of social media that is impacting every facet of our modern society. The great Jon Snow once said, “In battle, discipline beats numbers nine times of every ten.”
[1]Riddle, Jason, All Too Easy: Spreading Information Through Social Media, The Arkansas Journal of Social Change and Public Service, Mar. 1, 2017. ttps://ualr.edu/socialchange/2017/03/01/blog-riddle-social-media/
[2]Matsa, Katerina E. and Shearer, Elisa, Social Media Sites as Pathways to News, Pew Research Center Journalism & Media, https://www.journalism.org/2018/09/10/news-use-across-social-media-platforms-2018/pj_2018-09-10_social-media-news_0-03/, Sept. 18, 2018.
[3]Kemp, Simon, Essential Insights into how People Around the World Use the Internet, Mobile Devises, Social Media, and E-Commerce, Global Digital Report 2019, Hootsuite, https://p.widencdn.net/kqy7ii/Digital2019-Report-en.
[4]Ellis, Leslie, Trial Graphix, Friend or Foe? Social Media, the Jury and You, The Jury Expert September 26, 2011
[5]Moroccanoil v. Marc Anthony Cosmetics, (2014) 57 F.Supp.3d 1204.
[6]Sanders, Sam, Did Social Media Ruin Election 2016?, National Public Radio, Inc. Politics, Nov. 8, 2016.
[8]Askew, Lauren, Can We Trust Social Media as a News Source?, Miappi, Mar. 1, 2018.
[9]Aisch, Gregor, Huang, Jon, Kang, Cecilia, Dissecting the #PizzaGate Conspiracy Theories, New York Times, December 2016.
[10]People v. Oyerinde (2011) Mich.Ct.App. 26.
[12]Callahan, Denise, G., Social Media Posts Admissible in Court, Journal-New, Oct. 8, 2012.
[13]13.Gilliland, Josh, The Admissibility of Social Media Evidence, Litigation News, Analysis, and Publications from the ABA Section of Litigation, Winter 2013