Thursday, June 13, 2013

State appellate court rules on Facebook message authentication and hearsay arguments

In Smith v. State, No. 2012-KA-00218-COA, the Mississippi Court of Appeals addressed authentication and hearsay arguments regarding social networking messages in a case of first impression. The court ultimately found the messages to have been properly admitted.

The defendant was convicted of capital murder for the death of his stepdaughter, a seventeen-month old girl. At trial, the prosecution was allowed to use as evidence Facebook messages sent between the defendant and his wife.

On appeal, the defendant argued that the Facebook messages should not have been admitted because they were not properly authenticated and were hearsay. As to the issue of authentication, the court found the messages to be properly authenticated because the wife testified that the printouts were "Facebook messages between her and Smith."

On the hearsay issue, there were two types of messages before the court. One was an e-mail notification produced automatically by Facebook notifying the wife of a new message which contained the content of the message itself. The other was a printout of wall postings from the defendant on the wife's page. The court found that because the e-mail was "a fully automatic process, ... [it] may not be considered as hearsay." Comparing the case to one a federal court opinion, the court reasoned:

The court noted that when someone forwards an email, he or she has made an out-of-court assertion as to what someone else said. Id. There, however, a person forwarded the message. Thus, there was an assertion and a declarant. Here, an automatic process sent each message. As a result, in this case there was neither an assertion nor a declarant. The email notification, which contained the Facebook message, is not within the definition of hearsay.
The court then found that the defendant's statements were admissions by a party-opponent and therefore not hearsay. The wife's statement "could be hearsay" and no exception was offered by the state, but the error was considered harmless.


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