United States: Use Of Digital Evidence At Trial Is Ripe For Guidance In The New Year

Last Updated: January 31 2017
Article by Matthew S. Adams

Originally published by New Jersey Law Journal

While many were preparing to shut it down for the holidays and enjoy some holiday cheer, the Appellate Division was hard at work issuing a significant evidentiary ruling during the ordinarily subdued week before Christmas last month. In State of New Jersey v. Terri Hannah, Docket No. A-5741-14T3, decided Dec. 20, 2016, the Appellate Division tackled the requirements for the authentication of social media content at trial in New Jersey.

The social media content at issue was a tweet that supported the State's case against a defendant accused of assaulting another woman—her ex-boyfriend's then current girlfriend—with her high heeled shoe at a party attended by the trio. The tweet in question read, in relevant part, "shoe to ya [sic.] face bitch[,]" and was published under the defendant's Twitter "handle" after the alleged assault took place.

At trial, the defendant challenged the victim's account of relevant events, which included the defendant's alleged use of footwear as a weapon against the new romantic interest of her former boyfriend. While the defendant acknowledged that a verbal argument occurred at the time of the alleged assault, she denied the type of violent, physical altercation that the victim reported. The tweet was used by the State to corroborate the victim's version of events, and helped secure the conviction of the defendant. Namely, the tweet was successfully characterized as a taunting admission of the shoe assault, and, thus, at least circumstantial proof that the altercation at issue happened the way it was reported by the victim.

On appeal to the Appellate Division after her Municipal Court conviction for simple assault was upheld in a trial de novo in Superior Court, the defendant argued to the presiding Appellate Division panel that the tweet in question was not properly authenticated, and, therefore, that its admission into evidence at trial was improper. Specifically, the defendant advocated for application of a standard of authentication for social media content that has been adopted in at least one other state where the proponent of the evidence is held to a heightened authentication requirement due to some of the inherent potential for social media evidence—largely due to its format—to be more easily compromised than non-digital counterparts and, therefore, rendered unreliable. See Griffin v. State, 19 A.3d 415 (Md. 2010).

The reviewing Appellate Division panel, comprised of Judges Fisher, Leone and Vernoia, disagreed with the defendant, and held that the rules of evidence that are currently in place as to more traditional forms of evidence should apply to social media evidence as well. The panel determined that a "screenshot" of the tweet captured by the victim should be subjected to the same scrutiny as any other form of evidence for purposes of determining its authenticity, and stated, "[w]e need not create a new test for social media postings. Defendant argues a tweet can be easily forged, but so can a letter or any other kind of writing." Refusing to adopt a heightened standard of authenticity for social media evidence, the Appellate Division reasoned, "[t]he simple fact that a tweet is created on the internet does not set it apart from other writings. Accordingly, we apply our traditional rules of authentication under N.J.R.E.901." The Appellate Division panel went on to describe the indicia of authenticity that it believed surrounded the tweet, supporting its authenticity, and concluded that the tweet was properly admitted into evidence at trial.

WhileHannah now provides authoritative guidance for practitioners when seeking to authenticate social media evidence, the Appellate Division's decision is more groundbreaking, in the humble opinion of this author, for the issues that it does not address and the way that it highlights gaps that continue to remain under New Jersey law with respect to digital evidence.

The Appellate Division may have addressed lingering arguments pertaining to one form of digital evidence in Hannah, but the decision is not a one-size-fits-all, cookie-cutter framework that should transcend each and every type of digital evidence that might be encountered in a criminal case. A social media post is pretty low on the sophistication scale. It's not unlike a blog post or a journal entry. The content stands for itself, and with a proper foundation, stands on its own like the pages of a book or an article in a magazine or a newspaper. While there are unique technical components of a social media post that could be used to lend to a conclusion as to its authenticity based upon the medium used for its publication, those unique electronic components do not play the same role as they do, for example, in connection with a text message, email or a video or audio recording. In those latter examples of far more sophisticated digital evidence, metadata, classifiable according to most computer scientists as either descriptive, structural or administrative, unlocks the truth behind what appears on the surface of the evidence.

Not all digital information is one-dimensional in the same way as its paper counterparts, and therefore the parallels to the more traditional "bricks and mortar" concepts of evidentiary authentication that the Appellate Division has drawn in Hannah with respect to social media posts do not easily translate into each and every type of digital evidence, especially digital evidence of greater sophistication than a basic social media post. Thus, there remains the need for a more nuanced development of the law in New Jersey on the subject of authenticating digital evidence in contexts outside of the basic social media post example that has now been addressed by the Appellate Division in Hannah.

For example, metadata has constitutional significance that the Hannah decision fails to address. It is no less a part of a text message, email or video or audio recording than the content of those items of digital evidence. Accordingly, the holding in Hannah should not be extended beyond the social media context, where there is a clear-cut parallel to non-digital evidence.

Metadata is baked in as part of the three-dimensional composite that makes up most more sophisticated forms of digital evidence, and provides important details about the evidence that are frequently not apparent from the face of the evidence. For example, the date that a recording was made or if individuals were blind-copied on an e-message are facts only determinable, in most cases, through an analysis of metadata. Yet, too frequently, those who stand accused in a criminal or even quasi-criminal or regulatory proceeding are forced to defend themselves without this fundamental and very illuminating portion of the electronic evidence being used against them—whether due to improper collection techniques or sheer ignorance as to the existence of this third dimension of the evidence that is frequently hidden from the naked eye. How can one be said to have been given access to all of the evidence to be used against him or her, a basic component of due process as American as apple pie and fireworks on the Fourth of July, with such a fundamental dimension of the purported evidence missing?

In sum, caution must be exercised in extending Hannah beyond the basic context in which it was decided, involving the screenshot of a straightforward social media post. There are many forms of more sophisticated electronic evidence that are glaringly deficient, and, therefore, arguably inauthentic under evidentiary law, if mere facsimiles are permitted to be used as substitutes for the genuine article.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Matthew S. Adams
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions