The Use of Electronic and Social Media Evidence

posted by Michelle Malone January 16, 2015

You may want to pause and reconsider before you submit that post.  Perhaps that was the message sent after a Connecticut Superior Court judge ordered a divorcing couple to disclose their passwords to social networking and dating websites.  Upon suspicions that the wife may have been posting her feelings toward her children and her feelings towards her ability to

The decision causes one to question how social media and electronic communications may be submitted as evidence in a divorce proceeding.

Facebook entries, Youtube videos, email exchanges, tweets, texts and picture posts initially considered to be private exchanges amongst friends or networks are discoverable and have the potential to be used as evidence in a judicial proceeding.

Since it is possible that a printout of an electronically released communication can be altered or the initial communication itself can be generated by someone other than the purported sender or account holder, the court will first look to determine if the particular communication was properly authenticated.  Under §9-1(a) of the Connecticut Code of Evidence, the requirement of authentication is satisfied when a party presents “evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.”  Authentication of electronic communications can be achieved by traditional means under the Connecticut Code of Evidence such as through direct testimony of the purported originator or by presenting circumstantial evidence of distinctive characteristics within the electronic communication that are attributable to the purported originator.   Due to the varying types of electronic communication mechanisms the court will make a determination as to authenticity on a case by case basis.  Once authentication has been established and so long as the information contained within the electronic communication is otherwise admissible, the contents of the electronic communication may be entered into evidence.

The prevalence of electronic communication and the popularity of social networking are undeniable.  Since an increasing number of litigants are attempting to offer these communications into evidence, it is best to remember that a tweet today may be used as evidence tomorrow!

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