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Chats, Posts and Texts: Finding Their Place in a Court of Law

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charts-postsBy now, most of us have heard of cases where law enforcement professionals found incriminating evidence on social media sites like Facebook and Twitter and then used that evidence to gain a conviction in court. 

Anyone who watches NCIS would think this is standard operating procedure in police work today. Indeed, the recent Survey of Law Enforcement Personnel and Their Use of Social Media (conducted by LexisNexis® Risk Solutions 2014) supports that. This survey of the law enforcement community shows that eight out of 10 law enforcement professionals actively use social media as a tool in investigations. 

But the waters run murky when it comes to presenting this digital evidence in a courtroom. Rules of court can vary by jurisdiction. What’s accepted in one court might not be considered in another. 

So where is the guidance that law enforcement investigators and prosecutors need to help navigate these churning waters? Specifically, what are the requirements for authenticating the evidence found on someone’s Facebook page to prove that it really is his or her information, and not posted there by someone else? 

Help can be found in two court cases that now stand out as a basis for evidence found on social media sites. In Griffin v. State, the Maryland Court of Appeals provided three potential methods for properly authenticating evidence from a social networking site. In Tienda v. State, Texas courts ruled that it’s basically up to a jury to decide if the evidence is strong enough. 

authenticating-screenshotThese two cases—along with two others from California—are discussed more in-depth in a paper recently published by SEARCH.  Authenticating Evidence Found in Cyberspace is available to all law enforcement professionals upon request. 

In the LexisNexis survey, 78% of current users said they plan to use social media sites in their investigations even more in the coming year. This means that the volume of digital evidence is only going to continue to increase. 

It is important for all law enforcement professionals to get the proper training they need in order to process this information in a way that is going to stand up in court. And it’s equally important for agencies to adopt policies that will help guide this process and support their investigators.

JustinFitzsimmonsAbout the Author

Mr. Justin Fitzsimmons is Program Manager of High-Tech Crime Training Services for SEARCH. He conducts legal, policy, and regulatory research, prepares white papers, and provides assistance and instructional services to justice, public safety, and homeland security agencies, particularly in digital evidence recovery, investigation, and prosecution. SEARCH provides training to justice, public safety and homeland security agencies nationwide, including on digital evidence investigations.

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