In today’s hyper-online world, it is a pressing question whether our social media posts can be used against us in a court of law. To be admitted as evidence in a California court, social media posts need to pass the same analysis as any other potential piece of evidence. This analysis consists of five questions, which this blog will explain. The rules of evidence are often complex, especially considering differences between state laws and federal laws. If you would like a more personalized explanation, and especially if you need confident and skilled representation, don’t hesitate to contact a Red Bluff criminal lawyer today.
H2-1 Admitting Social Media Posts as Evidence in California
Authenticity and Secondary Evidence, California Evidence Code § 250, 1410-1421, 1520-1521, 1410-1421
First, we should explain what counts as writing admissible as evidence to begin with. The California Evidence Code defines a “writing” broadly, with a long list of acceptable forms, including, handwriting, typewriting, printouts, photocopies, as well as every other means of recording any tangible thing. California emphasizes that writing includes any means of recorded communication or representation.
To ensure the content of the writing is accurate, California requires that an admissible original version of the writing be submitted, or if this isn’t possible, then there must be admissible secondary evidence to prove the contents of the writing. The court will exclude secondary evidence if it presents a real dispute on the material terms of the writing or if admitting this evidence would be otherwise unfair.
A piece of evidence is considered authenticated when the attorney presenting it manages to prove to the court that the writing is probably what they claim it is. Once proven, the opposing now has the burden and option of showing that the writing is not what the attorney says it is.
Form of Question, California Evidence Code § 765-778
This consideration deals with whether the attorney requesting to admit a piece of evidence has asked an objectionable question. Is the question this evidence is meant to answer ambiguous or compound? Does it make assumptions or call for speculation about facts that are not in evidence?
Relevance, California Evidence Code § 350 & 352
Next, the court will determine if the evidence is relevant. This means figuring out if the benefit of introducing the evidence outweighs the potential harm of the evidence. Is this evidence so useful that it warrants being admitted despite the possible waste of time or misleading of the jury?
Hearsay, California Evidence Code § 1200, 1220 – 1390
Hearsay rules also apply to evidence. Social media posts would seem to be hearsay, in that they are statements made by someone who might not be a witness, which an attorney would offer to assert the truth of the matter states. However, nationwide and statewide in California, courts have typically permitted social media posts as evidence under exceptions or exemptions.
Courts will consider if a privilege applies that would invalidate using this piece of evidence.
Finally, it is important to note that there are areas of disagreement between the California Rules of Evidence and the Federal Rules of Evidence. Attorneys must keep this in mind and never assume the Federal Rules of Evidence are identical to the California Rules of Evidence.