New Jersey Appellate Division Defines Admissibility Standards for Tweet

In STATE OF NEW JERSEY v. TERRI HANNAH, A-5741-14, decided December 20, 2016, the New Jersey Appellate Division held that New Jersey’s current standards of authentication apply to determining the admissibility of a social media posting such as a Tweet.

N.J.R.E. 901 provides: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.”

Authentication “‘does not require absolute certainty or conclusive proof’ – only ‘a prima facie showing of authenticity’ is required.”  State v. Tormasi, 443 N.J. Super. 146, 155 (App. Div. 2015) (quoting State v. Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162 N.J. 132 (1999)).  “This burden was not designed to be onerous.”
State v. Hockett, 443 N.J. Super. 605, 613 (App. Div. 2016).   “‘Courts are inclined to assess their role in authentication as that of a screening process[,]’ and ‘will
admit as genuine writings which have been proved prima facie genuine . . . leaving to the jury more intense review of the documents.'”  Konop v. Rosen, 425 N.J. Super. 391, 411 (App. Div. 2012) (quoting Biunno, supra, comment 1 on N.J.R.E. 901
(2011)).

Authenticity can be established by direct proof – such as testimony by the author admitting authenticity – but direct proof is not required.  Biunno, supra, comment 2 on N.J.R.E. 901 (2016); N.J.R.E. 903.  “A prima facie showing may be made
circumstantially.”  Konop, supra, 425 N.J. Super. at 411.  “Such circumstantial proof may include demonstrating that the statement ‘divulged intimate knowledge of information which one would expect only the person alleged to have been the writer or participant to have.'”  Ibid. (quoting Biunno, supra, comment 3(b) on N.J.R.E. 901 (2011)).

Additionally, under the reply doctrine, a writing “may be authenticated by circumstantial evidence establishing that it was sent in reply to a previous communication.”  Mays, supra, 321 N.J. Super. at 629; see Biunno, supra, comment 3(c) on N.J.R.E. 901 (2016).

 

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