Family Law

Introducing Social Media Into Evidence in Family Court

By J. Benjamin Stevens

As I have discussed previously (here, here, here, here, here, & here), social media sites such as Facebook, MySpace, etc. can provide helpful information in Family Court cases.  Of course, finding the information is only half of the battle, because it still must be introduced into evidence at trial.

The Court in Lorraine v. Markel Am. Insurance Co., 241 F.R.D. 534 (D. Md. 2007), identified what it described as five hurdles that must be cleared in order to introduce electronically stored information into trial:

1. The information must be relevant.  Personal conduct is usually at the center of Family Court cases, so this burden is frequently easy to meet.  Examples can include: photos of an intoxicated parent in his child's presence; photos/messages related to extramarital affairs; and photos of recently purchased items.
2. The information must be authenticated.  Postings on Facebook can be easily authenticated through their author, and photographs can be admitted if they are an accurate description of the persons/items shown.  Sometimes, testimony from the person who obtained a copy of a web page will be sufficient if that witness can indicate how and when it was copied and testify as to its accuracy.
3. The information is subject to the hearsay rule.  Images from websites do not constitute hearsay unless they depict the intended message. Messages placed on social networking sites are also rarely introduced to prove the truth of the matter asserted in the statement. Instead, they may be introduced to establish a state of mind or to show an inconsistency between the subject's prior statements and asserted positions in either the pleadings or in testimony at the hearing.
4. The information must comply with the "original writing" rules.  These rules require an original record be produced, if available, unless otherwise permitted.  However, many Courts will accept a copy, so long as it accurately reproduce the original.  If the photograph or writing is still available on the Web page, that page may be printed.  If the evidence has "disappeared," there is an additional exception that permits secondary evidence when original evidence is no longer available either due to unintentional conduct or spoliation.  Social media sites do not like to produce substantive content from their user pages and often claim that doing so would violate the Stored Communication Act.
5. The probative value is substantially outweighed by the danger of unfair prejudice. This is not a big problem in South Carolina because family law matters are heard by a judge and not a jury.

Source: "Using Social Network Evidence in Family Court" by Mary Kay Kisthardt and Barbara Handschu, published at Law Technology News from Law.com.

Full post as published by SC Family Law Blog on October 05, 2010 (boomark / email).