By: Brad McCullough
One of the more ubiquitous idiomatic phrases used in recent years has been, “It is what it is.” In three consolidated cases decided last month by the Court of Appeals of Maryland, the Court turned that phrase around and focused on the question, “Is it what it is?” – or, more precisely, “Is it what it says it is?” On April 23, 2015, Judge Battaglia issued the Majority’s opinion in Sublet v. State, Sept. Term 2014, No. 42; Harris v. State, Sept. Term 2014, No. 59; and Monge-Martinez v. State, Sept. Term 2014, No. 60.1 The cases concerned the authentication of information derived from social media, required the Court to expand on its four-year-old decision in Griffin v. State, 419 Md. 343 (2011), and inquired whether three trial judges had suitably answered whether the proffered social media “was what it says it was.” As part of that inquiry, the Court of Appeals adopted a standard for trial judges to use in resolving the authentication issue. But, as will be discussed, the standard chosen by the court presents yet another question: what standard of appellate review should be employed in assessing a trial court’s decision on authenticity?
At the core of any authentication question rests Md. Rule 5-901. That rule states “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Applying that rule in the context of social media can be challenging, and in Griffin the court had been charged with this task.
In that case, the prosecution had introduced into evidence pages printed from what purported to be the defendant’s girlfriend’s MySpace profile. Although the account user’s profile page contained a photograph of the defendant and his girlfriend, the girlfriend’s birth date, and a reference to the defendant’s nickname, the majority (in an opinion also written by Judge Battaglia) held that the pages did not contain “sufficient indicia of reliability,” and had not been sufficiently authenticated. Griffin, 419 Md. at 423. The court was concerned about “the possibility or likelihood that” someone other than the girlfriend had either created the social media profile or authored the statement on the profile that had been admitted as evidence at trial. Id.
In Griffin, the court suggested ways to authenticate social media evidence.
Read the article in full at, http://www.lerchearly.com/publications/1224-sublet-v-state-it-it-or-it.
Brad McCullough is a commercial and business litigator and appellate attorney at Lerch, Early & Brewer in Bethesda, Maryland. Brad represents businesses and individuals in a wide variety of cases in federal and state trial and appellate courts, as well as before arbitration panels and in mediation proceedings.
This article originally appeared on The Maryland Appellate Blog.
