In State v. Jesenya O., No. S-1-SC-38769 (N.M. June 16, 2022), the Supreme Court of New Mexico, considering an appeal relating to the authentication of social media evidence, found that the State’s authentication showing was sufficient under New Mexico Rule 11-901 to support a finding that, more likely than not, the Facebook Messenger account used to send the messages belonged to Jesenya O. (Child) and that Child was the author of the messages, so the Court reversed the Court of Appeals and reinstated Child’s delinquency adjudications.

Case Discussion

Child, then age seventeen, became Facebook friends with a former schoolmate, Jeremiah Erickson, then age nineteen. Over the next several weeks, the two conversed primarily, if not exclusively, through their respective Facebook Messenger accounts. The two got together on the night of February 24, 2020 and had differing accounts of what happened, with Erickson claiming Child appeared to be high or drunk and jumped into his car when he exited, crashing through a chain-link fence, striking a dumpster, and driving the car out of Erickson’s sight. Child claimed Erickson was drunk and that she exited the car after he made advances toward her and ultimately walked home. She also claimed she did not have her phone with her after leaving Erickson’s vehicle.

At Child’s adjudication, the State sought to introduce evidence of communications between Child and Erickson the State alleged took place on Facebook Messenger the day after the incident involving Erickson’s vehicle. The evidence was proffered in the form of two screenshots showing communications between a user identified as Erickson and a user identified by name and photograph as Child. The messages reflected an exchange, including:

[Child]: I was completely drunk I don’t know what I was doing

[Erickson]: Well we’re both f**ked.

[Child]: Yeah no kidding.

[Child]: I’m going to jail

[Erickson]: I can’t believe you took my car to Clovis and totaled it.

[Child]: I was drunk.

The State sought authentication of the social media evidence through Erickson’s testimony as to his personal knowledge of both the accuracy of the screenshots and his history of Facebook Messenger communications with Child, as well as through the contents of the messages themselves. The district court overruled the objection from Child’s trial counsel, and the evidence was admitted. Child was subsequently adjudicated delinquent and appealed the district court’s judgment and disposition to the Court of Appeals.

The Court of Appeals reversed based solely on the authentication of social media evidence issue. It concluded that, while communications arising on social media platforms are subject to the same authentication requirements as other evidence subject to Rule 11-901, the State had failed in its burden to properly authenticate the messages and found that the content of the messages was not “sufficiently confidential to establish that only Child could have authored the messages.”

Court’s Ruling

Finding that the “Traditional Standard Applied Under Rule 11-901 Provides the Proper Framework” for authentication of social media evidence, the Court stated that most courts “have endorsed the view that the traditional authentication standard is adequate to the task of vetting social media evidence”. The Court also stated:

“Today we clarify that, in New Mexico, the authentication of social media evidence is governed by the traditional authentication standard set out in Rule 11- 901, which requires the proponent to offer ‘evidence sufficient to support a finding that the [evidence] is what the proponent claims it is.’…We reiterate that, in meeting this threshold, the proponent need not demonstrate authorship of the evidence conclusively; arguments contesting authorship go to the weight of the evidence, not its admissibility.”

The Court also stated: “Here, the State proffered several indicia of Child’s authorship of the disputed messages, including the presence of Child’s name and profile photo on the exchanges, testimony from Erickson, the person who received the messages, and strong contextual clues as to authorship revealed in their content. This evidence was sufficient to support the district court’s finding that a reasonable juror could determine that Child authored the messages and that the exhibits displaying the messages were what the State claimed them to be.”

The Court also noted that: “the State provided additional foundational support through Erickson’s undisputed testimony that he and Child had relied heavily, if not exclusively, on the Facebook Messenger platform in conversing with each other during the weeks leading up to the incident at issue here. As an active participant in those earlier Facebook message exchanges, as well as the critical February 25 message exchange, Erickson was clearly ‘a witness with knowledge’ of the Facebook messages within the meaning of Rule 11-901(B)(1).”

As a result, the Court found “that the screenshots of those messages were, more likely than not, what they purported to be”, reversed the Appeals Court and reinstate Child’s delinquency adjudications, based on authentication of social media evidence per Rule 11-901.

So, what do you think? Should social media evidence be held to a higher standard of authentication than other evidence?  Please share any comments you might have or if you’d like to know more about a particular topic.

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