“IF YOU AINT BLASTIN, YOU AINT LASTIN!!!!”: How to Authenticate Incriminating Social Media Evidence

In our recent social media ethics webinar with John Browning of Lewis, Brisbois, (recording and slides available here) we noted the significant number of recent criminal matters involving key social media evidence. In reviewing these cases that are documented on our site, we continue to be amazed at what many alleged gang members choose to post on their public-facing Facebook and MySpace accounts. This led us to muse that it might be a good idea for Facebook to embed the Fifth Amendment of the US Constitution into their terms of service as a friendly reminder about their users’ right against self-incrimination.

Speaking of which, last month a Texas Appellate court upheld the murder conviction of Ronnie Tienda, who owes his trip to the slammer almost entirely on the content of his MySpace page. The case also underscores some important lessons on authenticating highly contested social media evidence.  In Tienda v. State (Tx App. 2012) the prosecution introduced several photographs from Tienda’s MySpace page featuring Tienda exhibiting gang signs and other gang paraphernalia, one with the helpful caption, “You ain’t BLASTIN, you ain’t lastin,” and another boasting “I LIVE TO STAY FRESH!! I KILL TO STAY RICH!! N OTHER WORDS IMA GO TO WAR BOUT MY SH**” followed by another notation, “Rest in peace, David Valadez” with a pointed link to a song played at Valadez’s funeral. David Valadez, of course, was the victim. Police also amassed a trove of other MySpace evidence including Tienda’s chat conversations with other suspects under investigation and even referring to the events of the night in question and concerns about the ensuing police investigation.

The Court admitted the MySpace printouts into evidence over the defendant’s objection, with the prosecution laying the foundation for these pictures through various circumstantial evidence. The prosecution pointed to various metadata and other circumstantial evidence from Tieda’s MySpace page, including his username, which was consistent with Tienda’s commonly known nick name, his email addresses registered to the account, User ID number, stated location (Dallas),  references to the victim’s funeral, communications with other suspects, and numerous posted photos of Tienda with associated date and time stamps.

The Texas appellate court determined that “this is ample circumstantial evidence—taken as a whole with all of the individual, particular details considered in combination—to support a finding that the MySpace pages belonged to the appellant and that he created and maintained them.”

While the prosecution achieved a good result, it faced a concerted challenge on the authenticity of the evidence, and as we have seen in other cases, relying on simple printouts of social media site pages is a very risky value proposition. This highlights the importance of utilizing best practices technology such as X1 Social Discovery to ensure all supporting metadata and other key circumstantial evidence is properly and comprehensively collected. As the Tienda case reveals, there is a wealth of relevant social media evidence out there, and if you are not properly collecting, your opponent will be objecting.