BATTAGLIA, J.
In this case, we are tasked with determining the appropriate way to authenticate, for evidential purposes, electronically stored information printed from a social
Antoine Levar Griffin, Petitioner, seeks reversal of his convictions in the Circuit Court for Cecil County, contending that the trial judge abused his discretion in admitting, without proper authentication, what the State alleged were several pages printed from Griffin's girlfriend's MySpace profile.
The State presented a conditional cross-petition, which we also granted, in which one question was posed:
Griffin was charged in numerous counts with the shooting death, on April 24, 2005, of Darvell Guest at Ferrari's Bar in Perryville, in Cecil County. During his trial, the State sought to introduce Griffin's girlfriend's, Jessica Barber's, MySpace profile to demonstrate that, prior to trial, Ms. Barber had allegedly threatened another witness called by the State. The printed pages contained a MySpace profile in the name of "Sistasouljah," describing a 23 year-old female from Port Deposit, listing her birthday as "10/02/1983" and containing a photograph of an embracing couple. The printed pages also contained the following blurb:
When Ms. Barber had taken the stand after being called by the State, she was not questioned about the pages allegedly printed from her MySpace profile.
Instead, the State attempted to authenticate the pages, as belonging to Ms. Barber, through the testimony of Sergeant John Cook, the lead investigator in the case. Defense counsel objected to the admission of the pages allegedly printed from Ms. Barber's MySpace profile, because the State could not sufficiently establish a "connection" between the profile and posting and Ms. Barber, and substantively, the State could not say with any certainty that the purported "threat" had any impact on the witness's testimony; the latter argument is not before us.
Defense counsel was permitted to voir dire Sergeant Cook, outside of the presence of the jury, as follows:
The trial judge, thereafter, indicated that he would permit Sergeant Cook to testify in support of authentication of the redacted portion of the pages printed from MySpace, containing the photograph "of a person that looks like Jessica Barber" and the Petitioner, allegedly known as "Boozy," adjacent to a description of the woman as a 23 year-old from Port Deposit, and the blurb, stating "FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!"
In lieu of Sergeant Cook's testimony, while maintaining his objection to the admissibility of the redacted MySpace page, defense counsel agreed to the following stipulation:
Whether the MySpace printout represents that which it purports to be, not only a MySpace profile created by Ms. Barber,
With respect to social networking websites in general, we have already had occasion, in Independent Newspapers, Inc. v. Brodie, 407 Md. 415, 424 n. 3, 966 A.2d 432, 438 n. 3 (2009), to describe those sites as "sophisticated tools of communication where the user voluntarily provides information that the user wants to share with others."
Anyone can create a MySpace profile at no cost, as long as that person has an email address and claims to be over the age of fourteen:
Richard M. Guo, Stranger Danger and the Online Social Network, 23 Berkeley Tech. L.J. 617, 621 (2008) (footnotes omitted). After a profile is established, the user may invite others to access her profile, as a "friend," who if the user accepts the befriending, can access her profile pages without further ado:
Nathan Petrashek, Comment, The Fourth Amendment and the Brave New World of Online Social Networking, 93 Marq. L.Rev. 1495, 1499-1500 (2009-2010) (footnotes omitted). Although a social networking site generally requires a unique username and password for the user to both establish a profile and access it, posting on the site by those that befriend the user does not. See Samantha L. Miller, Note, The 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).
David Hector Montes, Living Our Lives Online: The Privacy Implications of Online Social Networking, Journal of Law and Policy for the Information Society, Spring 2009, at 507, 508. For instance, in one circumstance, Sophos, a Boston-based Internet security company, created a profile for a toy frog named "Freddi Staur," and nearly 200 Facebook
The possibility for user abuse also exists on MySpace, as illustrated by United States v. Drew, 259 F.R.D. 449 (D.C.D.Cal. 2009), in which Lori Drew, a mother, was prosecuted under the Computer Fraud and
The potential for fabricating or tampering with electronically stored information on a social networking site, thus poses significant challenges from the standpoint of authentication of printouts of the site, as in the present case. Authentication, nevertheless, is generally governed by Maryland Rule 5-901, which provides:
Potential methods of authentication are illustrated in Rule 5-901(b). The most germane to the present inquiry are Rules 5-901(b)(1) and 5-901(b)(4), which state:
We and our colleagues on the Court of Special Appeals have had the opportunity to apply the tenets of Rule 5-901(b)(4) to a toxicology report, State v. Bryant, 361 Md. 420, 761 A.2d 925 (2000), to recordings from 911 emergency calls, Clark v. State, 188 Md.App. 110, 981 A.2d 666 (2009), and to text messages received on the victim's cellular phone, Dickens v. State, 175 Md.App. 231, 927 A.2d 32 (2007), but neither we nor our appellate brethren heretofore has considered the Rule's application to authenticate pages printed from a social networking site.
Rather, we turn for assistance to the discussion in Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D.Md. 2007), wherein Maryland's own Magistrate Judge Paul W. Grimm, a recognized authority on evidentiary issues concerning electronic evidence, outlined issues regarding authentication of electronically stored information, in e-mail, websites, digital photographs, computer-generated documents,
Regarding Rule 901(a), Judge Grimm iterated in Lorraine that the "requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims," to insure trustworthiness. Id. at 541-42. Judge Grimm recognized that authenticating electronically stored information presents a myriad of concerns because "technology changes so rapidly" and is "often new to many judges." Id. at 544. Moreover, 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. Id. at 543-44, quoting Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 900.06[3] (Joseph M. McLaughlin ed., Matthew Bender 2d ed.1997).
In the present case, Griffin argues that the State did not appropriately, for evidentiary purposes, authenticate the pages allegedly printed from Jessica Barber's MySpace profile, 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. The State counters that the photograph, personal information, and references to freeing "Boozy" were sufficient to enable the finder of fact to believe that the pages printed from MySpace were indeed Ms. Barber's.
We agree with Griffin and disagree with the State regarding whether the trial judge abused his discretion in admitting the MySpace profile as appropriately authenticated, with Jessica Barber as its creator and user, as well as the author of the "snitches get stitches" posting, based upon the inadequate foundation laid. We differ from our colleagues on the Court of Special Appeals, who gave short shrift to the concern that "someone other than the alleged author may have accessed the account and posted the message in question." Griffin, 192 Md.App. at 542, 995 A.2d at 805. While the intermediate appellate court determined that the pages allegedly printed from Ms. Barber's MySpace profile contained sufficient indicia of reliability, because the printout "featured a photograph of Ms. Barber and [Petitioner] in an embrace," and also contained the "user's birth date and identified her boyfriend as `Boozy,'" the 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. Id. at 543, 995 A.2d at 806.
We agree with Griffin that the trial judge abused his discretion in admitting
In so holding, we recognize that other courts, called upon to consider authentication of electronically stored information on social networking sites, have suggested greater scrutiny because of the heightened possibility for manipulation by other than the true user or poster. In Commonwealth v. Williams, 456 Mass. 857, 926 N.E.2d 1162 (2010), the Supreme Judicial Court of Massachusetts considered the admission, over the defendant's objection, of instant messages a witness had received "at her account at MySpace." Id. at 1171. In the case, the defendant was convicted of the shooting death of Izaah Tucker, as well as other offenses. The witness, Ashlei Noyes, testified that she had spent the evening of the murder socializing with the defendant and that he had been carrying a handgun. She further testified that the defendant's brother had contacted her "four times on her MySpace account between February 9, 2007, and February 12, 2007," urging her "not to testify or to claim a lack of memory regarding the events of the night of the murder." Id. at 1172. At trial, Noyes testified that the defendant's brother, Jesse Williams, had a picture of himself on his MySpace account and that his MySpace screen name or pseudonym was "doit4it." She testified that she had received the messages from Williams, and the document printed from her MySpace account indicated that the messages were in fact sent by a user with the screen name
The Supreme Judicial Court of Massachusetts determined that there was an inadequate foundation laid to authenticate the MySpace messages, because the State failed to offer any evidence regarding who had access to the MySpace page and whether another author, other than Williams, could have virtually-penned the messages:
Id. at 1172-73 (citations omitted). The court emphasized that the State failed to demonstrate a sufficient connection between the messages printed from Williams's alleged MySpace account and Williams himself, with reference, for example, to Williams's use of an exclusive username and password to which only he had access. The court determined that the error in admitting the improperly authenticated MySpace messages "did not create a substantial likelihood of a miscarriage of justice," however, and, therefore, did not reverse Williams's conviction, because Noyes's testimony was significantly overshadowed "by the testimony of two witnesses to the murder who identified Williams as the shooter." Id. at 1173.
Similarly, in People v. Lenihan, 30 Misc.3d 289, 911 N.Y.S.2d 588 (N.Y.Sup. Ct.2010), Lenihan challenged his second degree murder conviction because he was not permitted to cross-examine two witnesses called by the State on the basis of photographs his mother had printed from MySpace, allegedly depicting the witnesses and the victim making hand gestures and wearing clothing that suggested an affiliation with the "Crips" gang. The trial judge precluded Lenihan from confronting the witnesses with the MySpace photographs, reasoning that "[i]n light of the ability to `photo shop,' edit photographs on the computer," Lenihan could not adequately authenticate the photographs. Id. at 592.
In United States v. Jackson, 208 F.3d 633 (7th Cir.2000), Jackson was charged with mail and wire fraud and obstruction of justice after making false claims of racial harassment against the United Parcel Service in connection with an elaborate scheme in which she sent packages containing racial epithets to herself and to several prominent African-Americans purportedly from "racist elements" within UPS. Id. at 635. At trial, Jackson sought to introduce website postings from "the Euro-American Student Union and Storm Front," in which the white supremacist groups gloated about Jackson's case and took credit for the UPS mailings. Id. at 637. The court determined that the trial judge was justified in excluding the evidence because it lacked an appropriate foundation, namely that Jackson had failed to show that the web postings by the white
The State refers us, however, to In the Interest of F.P., 878 A.2d 91 (Pa.Super.Ct.2005), in which the Pennsylvania intermediate appellate court considered whether instant messages were properly authenticated pursuant to Pennsylvania Rule of Evidence 901(b)(4), providing that a document may be authenticated by distinctive characteristics or circumstantial evidence. In the case, involving an assault, the victim, Z.G., testified that the defendant had attacked him because he believed that Z.G. had stolen a DVD from him. The hearing judge, over defendant's objection, admitted instant messages from a user with the screen name "Icp4Life30" to and between "WHITEBOY Z 404." Id. at 94. Z.G. testified that his screen name was "WHITEBOY Z 404" and that he had printed the instant messages from his computer. In the transcript of the instant messages, moreover, Z.G. asked "who is this," and the defendant replied, using his first name. Throughout the transcripts, the defendant threatened Z.G. with physical violence because Z.G. "stole off [him]." Id. On appeal, the court determined that the instant messages were properly authenticated through the testimony of Z.G. and also because "Icp4Life30" had referred to himself by first name, repeatedly accused Z.G. of stealing from him, and referenced the fact that Z.G. had told high school administrators about the threats, such that the instant messages contained distinctive characteristics and content linking them to the defendant. In the Interest of F.P. is unpersuasive in the context of a social networking site, because the authentication of instant messages by the recipient who identifies his own "distinctive characteristics" and his having received the messages, is distinguishable from the authentication of a profile and posting printed from MySpace, by one who is neither a creator nor user of the specific profile.
Similarly, the State relies upon an unreported opinion, State v. Bell, 2009 WL 1395857, 2009 Ohio App. LEXIS 2112 (Ohio Ct.App.2009), in which the defendant, convicted of multiple counts of child molestation, asserted that the trial judge
In the case sub judice, the MySpace printout was used to show that Ms. Barber had threatened a key witness, who the State had characterized as "probably the most important witness in this case;" the State highlighted the importance of the "snitches get stitches" posting during closing argument, as follows:
In addition, during rebuttal argument, the State again referenced the pages printed from MySpace, asserting that Ms. Barber had employed MySpace as a tool of intimidation against a witness for the State. It is clear, then, that the MySpace printout was a key component of the State's case; the error in the admission of its printout requires reversal.
In so doing, we should not be heard to suggest that printouts from social networking sites should never be admitted. Possible avenues to explore to properly authenticate a profile or posting printed from a social networking site, will, in all probability, continue to develop as the efforts to evidentially utilize information from the sites increases. See, e.g., Katherine Minotti, Comment, The Advent of Digital Diaries: Implications of Social Networking Web Sites for the Legal Profession, 60 S.C.L.Rev. 1057 (2009). A number of authentication opportunities come to mind, however.
The first, and perhaps most obvious method would be to ask the purported creator if she indeed created the profile and also if she added the posting in question, i.e. "[t]estimony of a witness with knowledge that the offered evidence is what it is claimed to be." Rule 5-901(b)(1). The second option may be to search the computer of the person who allegedly created the profile and posting and examine the computer's internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question. One commentator, who serves as Managing Director and Deputy General Counsel of Stroz Friedberg,
A third method may be to obtain 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. This method was apparently successfully employed to authenticate a MySpace site in People v. Clevenstine, 68 A.D.3d 1448, 891 N.Y.S.2d 511 (2009). In the case, Richard Clevenstine was convicted of raping two teenage girls and challenged his convictions by asserting that the computer disk admitted into evidence, containing instant messages between him and the victims, sent via MySpace, was not properly authenticated. Specifically, Clevenstine argued that "someone else accessed his MySpace account and sent messages under his username." Id. at 514. The Supreme Court of New York, Appellate Division, agreed with the trial judge that the MySpace messages were properly authenticated, because both victims testified that they had engaged in instant messaging conversations about sexual activities with Clevenstine through MySpace. In addition, an investigator from the computer crime unit of the State Police testified that "he had retrieved such conversations from the hard drive of the computer used by the victims." Id. Finally, the prosecution was able to attribute the messages to Clevenstine, because a legal compliance officer for MySpace explained at trial that "the messages on the computer disk had been exchanged by users of accounts created by [Clevenstine] and the victims." Id. The court concluded that such testimony provided ample authentication linking the MySpace messages in question to Clevenstine himself.
HARRELL and MURPHY, JJ., dissent.
HARRELL, J., dissenting in which MURPHY, J., joins.
I dissent from the Majority Opinion's holding that "the picture of Ms. Barber, coupled with her birth date and location, were not sufficient `distinctive characteristics' on a MySpace profile to authenticate its [redacted] printout. . . ." 419 Md. 343, 357, 19 A.3d 415, 424 (2011).
Maryland Rule 5-901 ("Requirement of authentication or identification") derives from and is similar materially to Federal Rule of Evidence 901.
Applying that standard to the present case, a reasonable juror could conclude, based on the presence on the MySpace profile of (1) a picture of a person appearing to Sergeant Cook to be Ms. Barber posing with the defendant, her boyfriend; (2) a birth date matching Ms. Barber's; (3) a description of the purported creator of the MySpace profile as being a twenty-three year old from Port Deposit; and (4) references to freeing "Boozy" (a nickname for the defendant), that the redacted printed pages of the MySpace profile contained information posted by Ms. Barber.
I am not unmindful of the Majority Opinion's analysis relating to the concern that someone other than Ms. Barber could access or create the account and post the
It has been said that the "purpose of authentication is to . . . filter untrustworthy evidence." Phillip M. Adams & Assocs., L.L.C. v. Dell, Inc., 621 F.Supp.2d 1173, 1184 (D.Utah 2009). Like many filters that are unable to remove completely all impurities, Rule 5-901 does not act to disallow any and all evidence that may have "impurities" (i.e., in this case, evidence that could have come, conceivably, from a source other than the purported source). As long as a reasonable juror could conclude that the proffered evidence is what its proponent purports it to be, the evidence should be admitted. See Gerald v. State, 137 Md.App. 295, 304, 768 A.2d 140, 145 (2001) (stating that, after a trial court admits a document as being authenticated properly, "the ultimate question of authenticity is left to the jury"). The potentialities that are of concern to the Majority Opinion are fit subjects for cross-examination or rebuttal testimony and go properly to the weight the fact-finder may give the print-outs. Accordingly, I dissent.
Judge MURPHY authorizes me to state that he joins in the views expressed in this dissent.
Petrashek, 93 Marq. L.Rev. at 1506-07 (footnotes omitted).
In addition, the "reasonable juror" standard to which the dissent refers is apparently derived from the federal analogue to Maryland Rule 5-104(b), concerning "relevance conditioned on fact," a protocol not addressed in this case, which we discuss in footnote 15, infra. See United States v. Logan, 949 F.2d 1370, 1377 n. 12 (5th Cir.1991) (reasoning that in determining whether to admit evidence of disputed authenticity, the court should utilize the protocol established in Federal Rule 104(b), namely that "the judge [] make a preliminary determination [as to] whether a jury could reasonably conclude" that the evidence is what it purports to be).
Finally, authentication of evidence must be addressed by the trial court whether or not motive to fabricate or manipulate is raised by anyone or is in issue. See Lynn McLain, 6A Maryland Evidence—State and Federal § 901:1 (2001) ("Under Maryland law, generally. . . an object, writing, telephone conversation, or tape recording is not self-authenticating. Some evidence other than the item or reported conversation itself is required to establish that it is what its proponent says it is, or comes from the source which its proponent professes.").
LYNN MCLAIN, MARYLAND EVIDENCE—STATE AND FEDERAL § 901:1 (2001).