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In England, a criminal defendant proclaims, “I think I got away with it,” before the close of trial and is forced to take a plea. In Texas, a murder conviction is upheld based on the accused’s knowledge of intimate details about the killing and subsequent investigation. In California and Colorado, employee plaintiffs are required to disclose conversations with other employees related to a suit against the employer. In each of these cases, the crucial evidence was drawn from Facebook and other social networking sites.
Messages and postings on social networks have become a fundamental means of communication. By 2009, more conversations took place over social networks than by email. Lawyers have seized on social networking sites as a deep well of valuable information, resulting in an evidentiary debate in courtrooms nationwide surrounding the admissibility of social media evidence.
Two key issues for courts and attorneys faced with social media evidence have been: (1) proper authentication of the evidence, and (2) access to that evidence in the face of digital privacy laws. As recently as a few years ago, authentication and access each proved to be a substantial hurdle for an attorney seeking to admit social network communications into evidence. Recent decisions, however, reveal a trend toward admission, with the cooperation of social media sites themselves necessary to both authentication and access.