Ira P. Robbins (American University - Washington College of Law) has posted Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence (Minnesota Journal of Law, Science & Technology, Vol. 13, No. 1, 2011) on SSRN.
The Tennessee Court of Appeals used a different approach to authenticating social-networking postings and messages. It found that a message was properly authenticated when the recipient testified under oath that the posting accurately reflected the communications she had with the defendant.109 In Dockery v. Dockery, a woman had a “‘no contact’ order of protection” issued against her ex-husband after multiple instances of alleged domestic violence.110 The ex-husband later attempted to contact her by sending MySpace messages to her friend.111 In the lower court proceeding, the recipient of the MySpace messages testified that she printed the conversations “directly from her computer” and that the printouts accurately reflected their conversation while “identif[ying] which party to the conversation was making a particular statement.”112 The court found her testimony alone sufficient to authenticate the messages as authored by the defendant; that finding was upheld on appeal.113 By relying solely on the recipient’s testimony, the court failed to address the obvious reliability concerns with the MySpace messages. The court did not address the possibilities that the documents could have been altered, that the proponent could have been lying, or that someone other than the defendant could have authored the messages. The court’s failure to make these basic inquiries undermined the fairness of the ultimate outcome of the case because potentially unreliable, inculpatory evidence was admitted against the defendant.