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Over the last decade a hot legal topic has been the admissibility of Facebook, Twitter, and other online messages in court and trial proceedings.  The legal issue is whether the party attempting to admit the online statement can authenticate the statement.  How can they be sure that the online profile attached to the message is the real person who sent the message.

Recently, the Indiana Court of Appeals addressed this issue in Strunk v. State which can be read here.  In Strunk, the adult defendant molested a child victim.  After the incident the defendant sent the victim a facebook message that was a half-hearted attempt at an apology.

The defendant was convicted after a jury trial and he appealed.  The defendant objected to the admission of the facebook message into evidence.  The Court of Appeals affirmed the trial court and held the facebook message was admissible, stating:

“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Ind. Evid. R. 901. Authentication of an exhibit can be established by either “direct or circumstantial evidence.” Testimony that an item is what it is claimed to be, by a witness with knowledge, is sufficient to authenticate an item. Evid. R. 901. Distinctive characteristics like “the appearance, contents, substance, [and] internal patterns” taken together with all the circumstances is another way to authenticate an item of evidence. “Any inconclusiveness regarding the exhibit’s connection with the events at issue goes to the exhibit’s weight, not its admissibility.” [citations omitted]

During J.B.’s [child victim] testimony, the trial court admitted screen shots of Strunk’s Facebook profile and his message to J.B. J.B. testified that she had communicated with Strunk through the same profile page on previous occasions. She knew it was Strunk’s page because Strunk’s profile picture was a wolf and the screen shot in Exhibit 18 contained the same picture. J.B. knew the screen shot was Strunk’s Facebook profile because they had two mutual friends listed on Strunk’s page, one of which was her mother. J.B.’s mother also identified Exhibit 18 as a screen shot of Strunk’s Facebook profile and verified that she was one of Strunk’s mutual friends. J.B. testified Strunk left her house around midnight and that after Strunk left, J.B. received his message through the same Facebook page she had used to communicate with Strunk earlier that day. The trial court properly admitted the Facebook message.

If you have questions about a criminal matter contact NLKJ criminal defense attorneys Nick OtisDavid JonesMartin Kus, or Bill Kaminski.