Facebook Notifications Not Hearsay, May be Authenticated Through Testimony

According to a recent Mississippi Court of Appeals decision, a witness may properly authenticate an automatically-generated Facebook message through testimony alone. The Court further ruled that such messages may not be considered hearsay.

Smith v. State, a capital murder case, was largely affected by the introduction of Facebook message exchanges between the 17-year-old victim’s mother and the defendant, who had recently become her husband. The prosecution contended that two of the three messages indicated the defendant’s anger over childcare responsibilities and a threat to “hurt someone.” Two were available on the mother’s Facebook page; one of the others was not available in full, but a printout of the Facebook notification from the mother’s Facebook was obtained.

The court, relying on Mississippi Rule of Evidence 901(a) and a recent Connecticut decision outlining protocol for authenticating social media messages, established that witness testimony was sufficient to authenticate the evidence. Moreover, the court determined that the email notification and the printouts of the messages were not hearsay because there were no assertions, no declarants, and the statements were not made by a human. The court also determined that two of the three messages were not hearsay because they were sent by the defendant, and were, therefore, admissions by a party-opponent. The third message at issue, sent by the victim’s mother to the defendant, could be hearsay and the State offered no hearsay exception for this message; however, the court found that admitting this message into evidence would be considered harmless error.

The decision can be read in full here.

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