In State v. Eleck, 23 A.3d 818 (Conn. App. Ct. 2011), the defense sought admission of a Facebook messaging conversation between the defendant and a witness for the prosecution. The witness admitted that the messages were sent to her account, but she was not the author. Rather, her account had been hacked. The defendant claims that he was removed as the witness's Facebook friend days later, but the witness claims she still did not have access to her account. Ultimately, the trial court found that the messages were not properly authenticated and were thus inadmissible.
The appellate court affirmed, finding that there was not enough circumstantial evidence to authenticate the printout. Citing a variety of cases from other states (the issue was one of first impression for the court), the court essentially made it impossible to admit any evidence from an Internet source without an admission from the author.
Barring discovery and financial issues, here are some ways it possibly could have been authenticated:
- Internet cache connecting the postings to the witness's computer. (Commonwealth v. Purdy, 945 N.E.2d 372 (Mass. 2011))
- Facebook representative testimony connecting the messages to witness's IP address at the time. Griffin v. State, 2011 Md. LEXIS 226 (2011)
- Unique information others would not have been aware of. (Commonwealth v. Purdy, 945 N.E.2d 372 (Mass. 2011); Commonwealth v. Amaral, 78 Mass. App. Ct. 671 (2011))
UPDATE: The Connecticut Supreme Court has since granted defendant's appeal with regard to this issue (302 Conn. 945 (2011)).
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