With social media being such a big part of our lives today, many legal questions have arisen regarding the use of platforms like Facebook as evidence in court cases. One of the biggest issues is whether or not Facebook posts can be considered hearsay. In this article, we will take a close look at hearsay rules and how they apply to social media evidence.
What is Hearsay?
Hearsay refers to an out-of-court statement that is being used to prove the truth of the matter asserted. For example, if Amy testifies in court that “Brandon told me he robbed the bank,” that would be hearsay if it was used to prove that Brandon actually robbed the bank. The statement is considered unreliable because Brandon is not in court to be cross-examined about it. There are many exceptions to the hearsay rule, but in general, hearsay evidence cannot be used to prove that something is true.
Why is Hearsay Problematic for Evidence?
There are two main reasons why hearsay is problematic when used as evidence in legal proceedings:
- Reliability – When someone simply relays what they heard from someone else, it brings up questions around whether the original statement was inaccurate or misconstrued. Without being able to question the original speaker, it’s difficult to establish reliability.
- Fairness – Using hearsay evidence denies the other party the ability to cross-examine the original speaker. This goes against principles of fairness and due process in the legal system.
Essentially, hearsay opens the door to unreliable and untested evidence being used, which could lead to unjust outcomes. The legal system aims to avoid this by restricting the use of hearsay.
When Can Social Media Be Considered Hearsay?
In general, social media posts made by one person can be considered hearsay if they are then relayed by another person to prove the truth of the matter asserted in the original post. For example:
- Brandon posts on his Facebook page: “I robbed the bank today.”
- At Brandon’s robbery trial, Amy testifies: “I saw on Facebook that Brandon said he robbed the bank.”
In this scenario, Amy’s testimony would likely be considered inadmissible hearsay. She is relaying an out-of-court statement made by Brandon on social media, and using it as proof that he committed the bank robbery. The defense would not get to cross-examine Brandon about the reliability of his Facebook post.
When Might Social Media Be Exempt from Hearsay Rules?
There are some situations in which social media content may be exempted from hearsay restrictions:
- Party admission – If the social media statement was made by the opposing party in the case, it may be exempted as an admission by a party opponent.
- State of mind – Social media posts may be used to show the declarant’s state of mind at the time they made the statement.
- Excited utterance – If the social media post was made spontaneously, in response to a startling event, it may fall under the excited utterance exception.
- Present sense impression – Statements describing events as they are occurring may avoid the hearsay rule.
There are other hearsay exemptions that could also apply to social media content depending on the specific facts of the case.
Can Photos or Videos Be Hearsay?
Photos and videos shared on social media can also raise hearsay concerns in some cases. For example, if someone posts a photo on Facebook and then a witness comments about what happened in the photo, their description could be hearsay. The photo itself would likely not be considered hearsay, since it does not assert facts that can be true or false. However, statements explaining the context and meaning of a photo could be problematic hearsay in court.
Strategies for Avoiding Hearsay Problems with Social Media
When planning to use social media evidence in court, there are some strategies lawyers can follow to avoid hearsay objections:
- Get the social media content directly from the source during discovery rather than relying on witness testimony.
- Only use statements non-hearsay purposes, like showing effect on the reader or impeachment.
- Argue an exception applies, like party admission or present sense impression.
- Have the author of the social media content testify in court about their post.
Following these guidelines can help prevent inadmissible hearsay problems with social media evidence.
Notable Cases Involving Hearsay and Social Media
Here are some notable cases where hearsay issues were raised regarding social media evidence:
| Case | Summary | Holding |
|---|---|---|
| Griffin v. State of Maryland | The defendant objected to use of his social media photos with guns as hearsay. The witness testifying about the photos only knew about them from another person telling him. | The appeals court found the social media evidence was inadmissible hearsay because the witness did not have personal knowledge of the posts. |
| United States v. Brooks | A witness testified about the content of the defendant’s MySpace page, which included a photo of the defendant with a gun. The page had been deleted and the witness had not personally viewed it. | The appeals court ruled the testimony about the MySpace page was inadmissible hearsay since the witness had no personal knowledge. |
| Parker v. State | The defendant objected to testimony about the contents of his girlfriend’s social media account on hearsay grounds. The investigating officer had viewed the account himself. | The court allowed the testimony because the officer had personal knowledge, preventing a hearsay issue. |
These cases help illustrate how hearsay rules apply to social media evidence based on who is relaying the information and if they have firsthand knowledge. Courts are frequently dealing with these evidentiary issues today.
Tips for Avoiding Hearsay Problems with Social Media Evidence
Based on the hearsay risks around social media, here are some tips for using it as strong evidence in court:
- Have witnesses testify only about posts they have personally viewed.
- Get complete records from social media companies showing posts by particular users.
- Prove exceptions like party admissions or present sense impression apply.
- Argue the evidence is being used for non-hearsay purposes like impeachment.
- Have the author testify about their posts and meaning if possible.
- Authenticate authors and accuracy of social media evidence thoroughly.
Conclusion
Social media contains a wealth of evidence that lawyers want to use in court. However, hearsay rules can limit admissibility if attorneys are not careful. If social media posts are simply relayed by third-party witnesses, this triggers risks of exclusion on hearsay grounds. The best practice is to obtain original social media records through discovery and have authors testify about their own posts. Social media evidence requires extra authentication and hearsay analysis compared to more traditional evidence. But if handled correctly, Facebook, Twitter, Instagram and other platforms can provide compelling evidence and valuable insights for courtroom arguments.