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was a printout of a MySpace page allegedly belonging to the girlfriend of the Petitioner, Griffin, who had been charged with numerous counts in connection with the April 24, 2005 shooting death of a man in Perryville, Maryland. Te State introduced the printout of the MySpace page as evidence that Griffin’s girlfriend threatened one of the witnesses called by the State. Te printout showed a MySpace profile belonging to “Sistasouljah,” who was described on the page as a 23 year-old female with the birthdate 10/2/1983. Te page also contained a photograph of an embracing couple and the message: “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!” Te State called Griffin’s girlfriend as a witness, but did not question her or seek to authenticate the printout of the MySpace page. Instead, the State intended to authenticate the printout as the profile belonging to Griffin’s girlfriend’s through the police detective in charge of the investigation. Without waiving the objection to its admissibility, in lieu of testimony by the investigator, the defense agreed to a stipulation of what his testimony would have been. Te Defense maintained its objection to the admissibility of the printout, arguing in part that the State had not established a sufficient connection between the printout and Griffin’s girlfriend. Te printout was admitted into evidence. Te Court of Appeals of Maryland held that the trial

LegalTech: Clients & Social Media

Continued from page 52

opportunity to assess your clients’ social media content, you will be better prepared to respond to discovery requests.

Evidentiary Issues As mentioned above, aside from the threat social

networking poses to your client by virtue of information your client has published, the second threat it poses is that information may be generated by a third party, regardless of its accuracy.7

Virtually anyone can set up a social networking page

and create an alias if so inclined. When the social networking site’s content becomes evidence in a case, admissibility may turn on whether the content can be authenticated. In Griffin v. State, the Court of Appeals of Maryland recently determined the appropriate way to authenticate electronically stored information printed from a social networking website – in that case, MySpace.8

In Griffin, the social media content at issue

7 Griffin v. State, 419 Md. 343, 19 A.3d 41 ,421 (Md. 2011) (quoting David Hector Montes, Living Our Lives Online: Te Privacy Implications of Online Social Networking, Journal of Law and Policy for the Information Society, Spring 2009, at 507, 508). 8 See Griffin v. State, 419 Md. 343, 19 A.3d 415 (Md. 2011)

54 Trial Reporter / Winter 2012

Court had abused its discretion in admitting the evidence.9 Te Question before the Court of Appeals was whether the MySpace printout represented that which it purported to be, not only a MySpace profile created by Griffin’s girlfriend, but also upon which she had posted the entire “SNITCHES GET STITCHES” comment. After discussing the nature and use of social networking

sites, from creating profiles to interacting within larger networks, the Court homed in on the potential for abuse observing that “anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password.”10 So

how do you authenticate electronically stored

information, particularly from social networking sites, where the potential for fabrication or tampering is great? It is possible. Te reversible error in Griffin could have been avoided had the State taken steps to authenticate the printouts properly. For example, under Maryland Rule 5-901, which governs authenticity, the State could have authenticated the evidence through the testimony of Griffin’s girlfriend.11


9 Griffin, 19 A.3d at 423-24. 10 Griffin, 19 A.3d at 420-422 (citing Samantha L. Miller, Note, Te Facebook Frontier: Responding to the Changing Face of Privacy on the Internet, 97 Ky. L.J. 541, 544 (2008-2009); Eric Danowitz, MySpace Invasion: Privacy Rights, Libel, and Liability, 28 J. Juv. L. 30, 37 (2007); Nathan Petrashek, Te Fourth Amendment and the Brave New World of Online Social Networking, 93 Marq. L. Rev. 1495, 1499 n. 16 (2009-2010);Griffin, 19 A.3d at 422 (illustrating the deleterious consequences that can result from the relative ease with which anyone can create fictional personas or gain unauthorized access to another user’s profile) (citing United States v. Drew, 259 F.R.D. 449 D.C.D.Cal. 2009) (where a young woman killed herself after being fraudulently tormented over the internet by her former friend’s mother, who was masquerading as a potential fictitious male love interest). 11 Griffin, 19 A.3d at 422 n. 11 (citing Maryland Rule 5-901 (b) (1); United States v. Barlow, 568 F.3d

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