A recent drive by an old haunt resulted in the observation that the public school court’s blacktop, my first “court experience,” was none the worse for wear. More than 40 years of hard play had taken place on its surface, and it simmered in the hot summer’s morning sun. Memories flashed by of a rare incident of self-adulation—a three-game winning streak on its playgrounds in the then Internet-less world of three-on-three 11-game roundball. It was short-lived, our team did not leave with the day’s court honors, perhaps in part because this roundball enthusiast was far from the second coming of Bill Melchionne.1 Our “social network” at that time was more or less limited to our team, and the rivals who showed up that day to challenge us for court time. Today, self-adulation for the criminal element playing in the cyber world may result in more serious consequences. The law journals may be replete with accounts of the defense’s deft use of social media evidence to locate, identify or vet witnesses, uncover potential impeachment material against government witnesses, formulate or strengthen a particular trial strategy, or even aid in selecting a more favorable jury, among other strategies, but all this clever and, laborious research, and investigation may be undone by a client’s unbridled appetite for self-adulation in the cyber world.2 This article examines recent case law addressing the admissibility at trial of such self serving social media evidence.
Self-Inflicted Kudos
Historically, admissions and confessions by a person charged with a crime are critical pieces of evidence in a criminal trial. Certain forms of self-adulation in the cyber world may be admissible against the defendant depending on the context and the basis for its admission. The admission of these out of court statements usually do not run afoul of the hearsay rule. A statement is not hearsay if it is offered against a party, and is the party’s own statement as per Fed. R. Evid. 801(d)(2)(A). The proponent of the evidence must authenticate it and thereby demonstrate by a preponderance of the evidence that defendant made the statement.3 Moreover, if the defendant is charged with the crime of conspiracy, statements by a co-conspirator during the course of the conspiracy may be legally attributed to the defendant, and admissible against him, even though he did not make or acknowledge the statement himself.4
