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the State attempted to authenticate the printout through circumstantial evidence under 5-901 (b) (4), which provides for authentication through “Circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that offered evidence is what it is claimed to be.” Griffin argued that the State failed to authenticate the

printout “because the State failed to offer any extrinsic evidence describing MySpace, as well as indicating how Sergeant Cook obtained the pages in question and adequately linking both the profile and the ‘snitches get stitches’ posting to Ms. Barber.” Te State argued that the photograph and personal information on the printout, as well as the reference to freeing “Boozy” were sufficient to enable the finder of fact to believe that the pages printed from MySpace were indeed Petitioner’s girlfriends. Te Court, guided by Judge Paul W. Grimm’s analysis in

Lorraine v. Markel American Insurance Co., 241 F.R.D. 534, 541- 44 (D. Md. 2007), agreed with Petitioner, concluding that the State had laid inadequate foundation.12

Te Court was troubled

by the fact that the lower court “failed to acknowledge the possibility or likelihood that another user could have created the profile in issue or authored the “snitches get stitches” posting.13 Te Court held that “the trial judge abused his discretion in admitting the MySpace evidence pursuant to Rule 5-901(b) (4), because the picture of Ms. Barber, coupled with her birth date and location were not sufficient ‘distinctive characteristics’ on a MySpace profile to authenticate its printout, given the prospect that someone other than Ms. Barber could have not only created the site, but also posted the ‘snitches get stitches’ comment.” Griffin, 19 A.3d at 423-24. Te Court reasoned that the potential for abuse and manipulation of a social networking site by someone other than its purported creator mandates greater scrutiny when dealing with social networking content. Id. at 424. Te Court cautioned, however, that it was not suggesting

that printouts from social networking sites should never be admitted; authenticated.

rather, such evidence must be properly Te Court suggested possible means of

authentication, including: 1) testimony from the purported creator; 2) examination of the computer’s internet history and hard drive; 3) obtaining information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it.14

215, 220 (5th Cir. 2009) (reasoning that testimony of witness who had posed as a minor female that the transcripts fairly and fully reproduced the online chats was sufficient to authenticate them for admission); United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007) (reasoning that chat room logs were properly authenticated as having been sent by the defendant through testimony from witnesses who had participated in the online conversations)).

12 Griffin, 19 A.3d at 423 (noting that the “complexity” or “novelty” of electronically stored information, with its potential for manipulation, requires greater scrutiny of “the foundational requirements” than letters or other paper records, to bolster reliability) (citing Lorraine, 241 F.R.D. at 543-44) (internal citations omitted).

13 Griffin, 19 A.3d at 423 (citing Griffin v. State, 192 Md. App. 518, 543, 995 A.2d 791, 806 (2010). 14 Id. at 427 – 428 (citations omitted).

Your clients’ use of social networking implicates a whole

host of discovery and evidentiary issues. In both instances, you need to be prepared. Arm yourself with knowledge of both the technology that’s out there, the content that fills your clients’ social networking pages, ways to deal with both the discovery requests and the challenges of using social media content as evidence. Whether you are trying to get the evidence in or to keep it out, your best chance for success comes with your understanding of the Rules and the case law that’s out there and your ability to use that understanding to your advantage. 

Biography Elisha N. Hawk is an associate with Janet, Jenner &

Suggs, LLC, who focuses her practice on complex products liability and mass tort litigation. She is licensed to practice in Maryland, Washington, D.C. and Minnesota. Prior to joining Janet, Jenner & Suggs, Ms. Hawk was an associate for a litigation firm in Towson, Maryland, where she also focused her practice on complex products liability. Ms. Hawk graduated from University of Maryland School

of Law in 2008 with a Certificate in Health Law. During law school, she interned with the Honorable Kathleen Gallogly Cox of the Circuit Court for Baltimore County.

Trial Reporter / Winter 2012 55

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