Albert Sublet IV v. State of Maryland, No. 42, Sept. Term, 2014, Opinion by Battaglia, J.

Tavares D. Harris v. State of Maryland, No. 59, Sept. Term, 2014, Opinion by Battaglia, J.

Carlos Alberto Monge-Martinez v. State of Maryland, No. 60, Sept. Term, 2014, Opinion
by Battaglia, J.

EVIDENCE – AUTHENTICATION –                         ELECTRONICALLY             STORED
INFORMATION – SOCIAL NETWORKING

Authentication of pages from a social networking website pursuant to Maryland Rule 5-
901, which provides that authentication of evidence is a condition precedent to its
admissibility, requires proof from which a reasonable juror could find that the pages are
what they purport to be.




                                         1
                                             IN THE COURT OF APPEALS
No. 42 - Circuit Court for Anne Arundel           OF MARYLAND
         County, Maryland
         Criminal No. K-2012-002287
         Argued: February 6, 2015                       No. 42
No. 59 - Circuit Court for Montgomery             September Term, 2014
         County, Maryland
         Criminal No. 121279               Albert Sublet IV v. State of Maryland
         Argued: February 6, 2015
No. 60 - Circuit Court for Prince
         George’s County, Maryland                      No. 59
         Case No. CT12-0824X                      September Term, 2014
         Argued: February 6, 2015
                                          Tavares D. Harris v. State of Maryland


                                                        No. 60
                                                  September Term, 2014

                                          Carlos Alberto Monge-Martinez v. State
                                                       of Maryland


                                                       Barbera, C.J.
                                                       Harrell
                                                       Battaglia
                                                       Greene
                                                       Adkins
                                                       McDonald
                                                       Watts,
                                                                       JJ.

                                                  Opinion by Battaglia, J.

                                           Barbera, C.J., Harrell and Adkins, JJ.,
                                             concur & dissent in No. 42 only


                                                   Filed: April 23, 2015


                                     2
       The rapid rise of social networking websites,1 themselves a branch of social media,2

once again gives us cause to explore the authentication of documents related to this genre,

under Maryland Rule 5-901, which provides that 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”, in three cases,

Sublet v. State, Harris v. State and Monge-Martinez v. State, consolidated for the purposes

of this opinion. All three cases involve the same legal issues, those being the elucidation

and implementation of our opinion in Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011),

in which we addressed the admissibility of a screenshot3 of a MySpace4 page, and its


1
 Social networking websites are characterized by a format that allows users to create online
profiles through which they share information, photographs and videos with other users.
Kathryn L. Ossian, Social Media and the Law §1:2.1 (2014). Users, in addition, are able
to comment on each other’s postings. Id.
2
 “Social media is defined as ‘forms of electronic communication . . . through which users
create online communities to share information, ideas, personal messages, and other
content.’” Ossian, supra, §1:1, quoting Merriam Webster Dictionary social media (11th
ed. 2009).
3
  A “screenshot” is an image that depicts only the content of the computer screen.
Merriam–Webster’s Online Dictionary (2015), available at http://www.merriam-
webster.com/dictionary/screenshot (last visited Apr. 20, 2015).          “Screenshot” is
synonymously used to indicate a picture taken of the screen of a cellular telephone. E.g.
Richards on behalf of Makayla C. v. McClure, 858 N.W.2d 841, 844 (Neb. 2015) (witness
took “screenshots” of text messages at issue that “show[ed] the actual screen of the text
messages”).
4
  “MySpace is a ‘social networking’ website where members can create ‘profiles’ and
interact with other members.” Griffin, 419 Md. at 346 n.2, 19 A.3d at 417 n.2. “Anyone
with Internet access can go onto the MySpace website and view content which is open to
the general public such as a music area, video section, and members’ profiles which are
not set as ‘private.’” United States v. Drew, 259 F.R.D. 449, 453 (D.C.D. Cal. 2009).


                                           1
application to the authentication of screenshots of messages allegedly sent through social

networking websites; in Sublet, via a Facebook5 timeline;6 in Harris, on Twitter7 through

“direct messages”8 and public “tweets”;9 and, in Monge-Martinez, through Facebook

messages.10




5
  Facebook users create online profiles to share information about themselves with other
Facebook users. Joshua Briones & Ana Tagvoryan, Social Media as Evidence 1:5:1:1
(2013). Facebook is currently the most popular social-networking website, (id.), with over
757 million daily active users, (Facebook Reports Fourth Quarter and Full Year 2014
Results, Facebook.com, http://investor.fb.com/releasedetail.cfm?ReleaseID=893395 (last
visited Apr. 20, 2015)).
6
 On Facebook, a “Timeline is the virtual space in which all the content of every Facebook
user is organized and shown.” What is a Facebook Timeline?, Rom Cartridge Technology
Explained, http://www.romcartridge.com/2011/12/what-is-facebook-timeline.html (last
visited Apr. 20, 2015). Facebook users can, generally, comment to anything shown on a
user’s timeline, including one’s own material.            Commenting, Facebook.com,
https://www.facebook.com/help/499181503442334/ (last visited Apr. 20, 2015).
7
  Twitter users share brief messages with one another of 140 characters or fewer, referred
to as “tweets”. Ossian, supra, § 1:2.2.
8
 On Twitter, “Direct Messages” are “one-on-one private conversations, or between groups
of users” that are only visible to the intended recipients. About Direct Messages,
Twitter.com, https://support.twitter.com/articles/14606-about-direct-messages (last visited
Apr. 20, 2015).
9
 “A Tweet is any message posted to Twitter which may contain photos, videos, links and
up to 140 characters of text.” New user FAQs, Twitter.com, https://support.twitter.com/
articles/13920-new-user-faqs (last visited Apr. 20, 2015). By default, “tweets” are
publically available. Id.
10
  On Facebook, “Messages” may be sent to any Facebook user and are only visible to the
recipient of the message. Sending a Message, Facebook.com, https://www.facebook.com
/help/326534794098501/ (last visited Apr. 20, 2015).


                                          2
       We shall hold that, in order to authenticate evidence derived from a social

networking website, the trial judge must determine that there is proof from which a

reasonable juror could find that the evidence is what the proponent claims it to be. We

shall hold in Sublet that the trial court did not err in excluding the admission of the four

pages of the Facebook conversation. We shall hold in Harris that the trial court did not err

in admitting the “direct messages” and “tweets” in evidence. We shall also hold in Monge-

Martinez that the trial court did not err in admitting the Facebook messages authored by

Monge-Martinez.

                                      Sublet v. State

       Albert Sublet, the first Petitioner herein, was charged by indictment in the Circuit

Court for Anne Arundel County with three counts of first degree assault, second degree

assault and reckless endangerment, as well as with one count of carrying a deadly weapon

with intent to injure. The charges against Sublet arose out of a fight that occurred among

Sublet, Chrishell Parker, her mother and her sister, in late October of 2012. According to

the State’s theory of the case, Sublet became aggressive when he arrived at Ms. Parker’s

apartment to pick up his girlfriend, Ymani Conner, and initiated an altercation; Sublet

urged, conversely, that it was Ms. Parker who was the instigator.

       During cross-examination of Ms. Parker, Sublet’s counsel sought to introduce into

evidence four pages alleged to have been a printout from Ms. Parker’s Facebook page of a

“conversation” among seven different individuals. The document submitted to Ms. Parker

for review consisted of four pages and written across the top of each page was “printed on




                                          3
10∙30∙12 from Facebook”.11 Each of the nineteen entries in the four pages contained the

name of the profile that had allegedly created it, as well as the time the entry was created.

Next to the name of the profile was also a picture. The four pages were collectively

received for identification as Defense Exhibit A.12

       With respect to the conversation in issue, the first page began on “Saturday” with a

statement associated with the profile “Chanica DatBytch Brown”, which Ms. Parker

identified as Ms. Brown’s Facebook username, while the fourth post on the first page was

related to the name “Cece Parker”. When asked if she had discussed the altercation on

Facebook, Ms. Parker stated that she had connected with Chanica Brown through Facebook

and that she herself used the name Cece Parker:

       [ATTORNEY FOR SUBLET]: Well, have you discussed [the fight] in social
       media?
       [MS. PARKER]: Social media?
       [ATTORNEY FOR SUBLET]: Like Facebook?
       [MS. PARKER]: Well, I’m not going -- people inboxed me and said I heard
       what happened to you, are you okay? And, yes, I have discussed it on Social
       Network.
       [ATTORNEY FOR SUBLET]: Okay. And you discussed it with a lady by
       the name of Shanika [sic] Brown, is that correct?
       [MS. PARKER]: Yes.
       [ATTORNEY FOR SUBLET]: And with a lady by the name of CiCi [sic]
       Parker?
       [MS. PARKER]: That’s me.

The posts depicted on the first page were:

       Chanica DatBytch Brown

11
   The source of the handwriting, as well as who had compiled the pages, were never
identified.
12
  Defense Exhibit A includes all four pages, but it is only the fourth page that appears to
be under consideration in this appeal.

                                          4
     Saturday via Mobile
     Had a BLAST lastnight… Shit got hectic hahaha ymani has more to
     come..lmaowack bytch
     Share
    2 people like this

       CanDii SoSeductive P Smhh
       Saturday at 13:12 via mobile

       Camerin Kill’Ent Johnson Yessssssa lol
       Saturday at 14:15 via mobile

       Cece Parker yea everytime i see that bitch ima fuck that dirty pussy bitch
       up . shout out to cam cam u was riden
       Saturday at 15:42 via mobile ∙ 1

       Tyesha Glover hahahahaha yea whore i agree……..@ cece the whole hood
       was ridin
       Saturday at 17:24

       Cece Parker yea.. dey was tho that shit was crazy
       Saturday at 20:27 via mobile ∙ 1

On the second page was a single entry affiliated with the user name “Zaquane Graham”

lamenting being left out of the conversation:

       Zaquane Graham Yall n[****]s maken me mad not tellin a n[***]a was
       goin on the way i feel im sayin fuck it dam im way down here and yall not
       tryin to keep me postedon was goin on u know wat fuck it i dn want to know
       Yesterday at 18:42 via mobile

On page three, Ms. Brown purportedly conversed with “Zaquane Graham” and “Tonisha

Brown”:

       Chanica DatBytch Brown
       Yesterday via Mobile
       She still tawkn shit mmmhm but u want to block me u not real ymani Conner
       u can keep hiding u an ya broke ass man that jus started working at bed bath
       an beyond out in the mall we will find yal or shuld i say u cuz he goin jail i
       got his pic lmao stupid hoe kp ya legs close bitch dont go down gardens cuz
       (INSIDER) its not safe lol


                                          5
     Share
    3 people like this.

      Zaquane Graham Dammm thats real talk y yall fightin anyway im about o
      kick both yall assess y yall fightin
      Yesterday at 15:02 via mobile

      Tonisha Brown I love you..you got me pissed off so take ya time read what
      I said an u will get it..
      Yesterday at 15:19 via mobile ∙ 1

      Chanica DatBytch Brown im not tripn off nobody u dnt even nko nothing
      so…..
      Yesterday at 15:40 via mobile

      Zaquane Graham Inbox me nica
      Yesterday at 15:40 via mobile

      Chanica DatBytch Brown an thats not my godsister an i stamp that….
      Yesterday at 15:42 via mobile

The fourth page contained six posts; an initial one identified with “Chanica DatBytch

Brown”, followed by two more posts allegedly from “Cece Parker”:

      Chanica DatBytch Brown demondra trenice Erica are my godsisters motjer
      of mines
      Yesterday at 15:43 via mobile

      Cece Parker ima say this it anit over #fact
      Yesterday at 16:40 via mobile

      Cece Parker her bf is a dead man walkn
      Yesterday at 16:44 via mobile

      Zaquane Graham Wtf is goin for real
      Yesterday at 17:05 via mobile

      Chanica DatBytch Brown call me brova 4438227645 @cece i kno i frel u
      my G
      Yesterday at 20:56 via mobile

      Chanica DatBytch Brown feel u


                                        6
       Yesterday at 20:56 via mobile

       At trial, Ms. Parker was confronted with the four pages by Sublet’s counsel, who

asked her to “look this over” and then asked her if she had “said those things” attributed to

her, to which she agreed. When Sublet’s counsel then inquired as to whether Ms. Parker

disliked Ms. Conner, Ms. Parker asserted that she did not know Ms. Conner prior to the

night of the incident and, furthermore, urged that she did not have “any personal animosity

against Ms. Conner”. As defense counsel began to ask about the content of the entry

attributed to Ms. Parker on the fourth page that read, “her bf is a dead man walkn”, the trial

judge intervened to address the issue of authentication of the Exhibit:

       [ATTORNEY FOR SUBLET]: What about this statement?
       [MS. PARKER]: That’s not to her. I don’t know what she’s talking about.
       It’s two different things.
       [ATTORNEY FOR SUBLET]: So when you said -- these are your words,
       you said, her boyfriend is a dead man walking --
       [STATE’S ATTORNEY]: Objection, your Honor.
       THE COURT: One moment. Just a moment. Let me ask counsel to approach
       the bench. And ask the jury to disregard the statement from counsel at this
       time.

       Outside the presence of the jury, the trial judge stated that, “it [was] not clear to

[him]” that “[Ms. Parker] agrees that everything is something that she wrote.” The judge

then permitted Sublet’s attorney to continue questioning Ms. Parker “to see if there are any

things that say [‘Cece’] that she does not agree that she wrote”.

       During further questioning by Sublet’s counsel, Ms. Parker affirmed that it was her

picture next to the entries allegedly authored by “Cece Parker”. Sublet’s attorney then

directed Ms. Parker to “Look at all of the pages”, “If you find one that you didn’t write,




                                           7
please let us know”, to which Ms. Parker asserted she did not write the entries on the last

page, and she did not understand where they came from.

       Upon further exploration by Sublet’s counsel regarding the genesis of page four,

Ms. Parker explained that she “[gave] her logout name and password to other people”, such

as “[t]he girl Shanika [sic]” and, ostensibly, to others, who would “hack your page and

[write] stuff on there”:

       [ATTORNEY FOR SUBLET]: Do you have a Facebook page?
       [MS. PARKER]: Uh-huh.
       [ATTORNEY FOR SUBLET]: Is that correct?
       [MS. PARKER]: Uh-huh.
       [ATTORNEY FOR SUBLET]: And it is in the name of CiCi [sic] Parker, is
       that correct?
       [MS. PARKER]: Yeah, but I give my logout name and password to other
       people too.
       [ATTORNEY FOR SUBLET]: Who?
       [MS. PARKER]: The girl Shanika [sic] I gave it to her. So, that’s why I’m
       like, I didn’t understand the last page. So, it might have been her on my page.
       THE COURT: I am sorry, who did you say you gave it to?
       [MS. PARKER]: Shanika. [sic]
       [ATTORNEY FOR SUBLET]: But you are conversing with Shanika [sic].
       [MS. PARKER]: No.
       [ATTORNEY FOR SUBLET]: So, Shanika [sic] is conversing with herself
       on Facebook?
       [MS. PARKER]: No. That’s what they do on there. Like they will hack
       your page and be writing stuff on there.

       The trial judge, thereafter, sustained the State’s objection to admission of all four

pages of Exhibit A, based upon three findings: that Ms. Parker’s password was not a secret,

that other people could and had presumably accessed and changed or inserted information

on Ms. Parker’s Facebook page, thereby attributing it to her, and that Ms. Parker’s

explanation was not disputed by expert testimony:




                                          8
         THE COURT: Okay. I am inclined to sustain the objection because the
         witness has testified, A, that her password is not a secret. B, that other people
         can and have hacked her Facebook page and have changed statements on it.
         And, C, if I am not losing track of my bullet points, we don’t have expert
         testimony to dispute her.
                 So, we have only one layperson’s testimony, which is that she has had
         the experience that people have altered her Facebook page including the
         statements, the conversations and therefore, she, in this particular case, thinks
         that is altered and she didn’t actually do that.
                 So, I don’t even find by a preponderance of the evidence that there is
         a sufficient basis for reliability to admit it. So, I will sustain the objection at
         this time.

         Sublet subsequently was convicted of two counts of second degree assault and

sentenced to ten years’ imprisonment with all but four years suspended, as well as five

years’ probation.

         In an unreported opinion, the Court of Special Appeals affirmed the trial court’s

exclusion of the Facebook pages.13 We granted Sublet’s Petition for Certiorari to address

the following questions:

         1. Did the lower courts err by excluding crucial Facebook evidence on
         authentication grounds where the suspected author of the Facebook posts
         testified at trial, admitted discussing the fight on Facebook, and recognized
         this specific Facebook conversation, and where the posts contained
         numerous distinctive characteristics demonstrating authenticity?
                 A. In excluding crucial Facebook evidence on authenticity grounds,
                 did the lower courts err by applying an incorrect legal standard?


13
     The questions presented in the Court of Special Appeals were:
         1. Did the trial court abuse its discretion by excluding crucial Facebook
         evidence on authenticity grounds when it applied an incorrect legal standard
         and the evidence had been properly authenticated?
         2. Did the trial court abuse its discretion in providing an unresponsive and
         misleading supplemental jury instruction that did not cure the jury’s
         confusion on the central issue of self-defense?



                                              9
             B. In assessing the Facebook evidence, did the lower courts err by
             not applying a correct and complete authentication analysis?

Sublet v. State, 438 Md. 739, 93 A.3d 288 (2014).

                                     Harris v. State

      Following a shooting at the Rockville Metro Station on May 18, 2012, in which

Jared C.14 and Wasima Gary were injured, Tavares Harris, the second Petitioner herein,

was charged in a nine count indictment with two counts of attempted first degree murder,

two counts of attempted second degree murder, two counts of assault in the first degree,

two counts of use of a handgun in the commission of a felony and one count of conspiracy

to commit murder.

      The day before the subject shooting, during a fight among students at Richard

Montgomery High School, Keon, a friend of Harris’s, was punched by James, a friend of

Jared C.’s. Apparently, according to trial testimony, the punch occurred because Jared C.

planned to rob Keon. Harris, according to the State, then planned to shoot Jared C. in

retaliation, as reflected in “direct messages”15 sent via Twitter and recovered from an




14
  Some individuals associated with Harris’s case are juveniles, so we refer to them only
by their first name and initial of their last name.
15
   “Direct messages” are “one-on-one private conversations, or between groups of users”
that are only visible to the intended recipients. About Direct Messages, Twitter.com,
https://support.twitter.com/articles/14606-about-direct-messages (last visited Apr. 20,
2015).



                                         10
iPhone16 found in Harris’s bedroom during the execution of a search warrant, as well as

public “tweets”17 obtained from an Android phone18 recovered from Harris’s person.

         During discovery, the State notified the defense that it “intend[ed] to call

Montgomery County Police Detective Jesse Grimes as an expert witness in [this] case” and

that he would testify with respect to, inter alia, “analysis and interpretation of digital

evidence” recovered during the investigation, including the “direct messages”.

         At trial, prior to Detective Grimes’s testimony as an expert in the field of forensic

examination of cell phones, the State informed the trial court that it would “want to move

into evidence . . . those contents of the twitter messages”, to which Harris’s counsel

objected. The trial judge decided the issue of authentication outside the presence of the

jury.

         The State proffered that Detective Grimes would testify that, through the use of

special software, he had retrieved the “direct messages” from the iPhone and determined

that “TheyLovingTc” and “OMGitsLOCO” were the participants to the conversation,

based upon “some more information that the phone carries that reflects this chat.” The

State proffered, furthermore, that through Detective Grimes it would move into evidence


16
     The iPhone was received in evidence as State’s Exhibit 76.
17
  A “Tweet” “is any message posted to Twitter which may contain photos, videos, links
and up to 140 characters of text” and, by default, is publically available. New user FAQs,
Twitter.com, https://support.twitter.com/articles/13920-new-user-faqs (last visited Apr.
20, 2015).
18
     The Android phone was received in evidence as State’s Exhibit 72.



                                            11
the forensic examination report of the iPhone he had compiled, which included the content

of the conversation, the times the respective “direct messages” were sent and received by

the phone, and that “OMGitsLOCO” and “TheyLovingTc” were the parties to the

conversation.19

       The “direct messages” reflected a conversation between “OMGitsLOCO” and

“TheyLovingTc”, which later was received in evidence at trial as State’s Exhibits 91 and

92.20 Detective Grimes explained, when viewing the “direct message” conversation, that

those messages sent from the iPhone appeared within a green box on the right hand side of

the screen, while the other party’s Twitter name was displayed across the top of the screen

and his or her messages appeared in a white box on the left hand side of the screen.

       In the conversation depicted in Exhibits 91 and 92, “OMGitsLOCO” references a

“shooting”, the need to “avenge keon” and that “they should have neva fucked wit Y2C”,21

to which “TheyLovingTc” agreed:22


19
  An extract of Detective Grimes’s report regarding the “direct messages” was received in
evidence as State’s Exhibit 96.
20
  State’s Exhibit 92 was a screenshot showing the first half of the conversation, while
State’s Exhibit 91 showed the second half of the same conversation, with significant
overlap.
21
  According to trial testimony, Harris and his friends called themselves “Yearnings Too
Crazy”, or “Y2C” for short.
22
  The boxes represent the location of “profile pictures”, which are personal images selected
by whomever created the Twitter profiles. See Customizing your profile, Twitter.com,
https://support.twitter.com/articles/127871-customizing-your-profile (last visited Apr. 20,
2015). At trial there was testimony that the “profile picture” accompanying the “direct
messages” from “TheyLovingTc” was a photograph of Harris.


                                          12
                                     @TheyLovingTc

                                    5/17/12 8:53 PM
      Ite and tell them bitch ass n[****]s to come to the farm cuz I don’t
      feel safe shooting them right by the police station unless we got the
      car

                                 5/17/12 9:09 PM
           They not gone come we gone try but if not we gone do what we do

                                    5/17/12 9:11 PM
                               Alright say no more we not goin out like that

                                      5/17/12 9:23 PM
             That’s what I’m saying

                                 5/17/12 9:25 PM
      Yeah man I don’t care nomore. I’m just now starting to becomes a
      real n[***]a. We gon avenge keon.

                                    5/17/12 10:12 PM
             hell yeah .

                                        5/17/12 10:16 PM
      I started to fall off but ya boi Is back and they should have neva fucked
      wit Y2C bra it’s game ova

      The trial judge determined that State’s Exhibits 91 and 92 were properly

authenticated, because, along with the proffer of Detective Grimes’s testimony, there was

independent verification of the Twitter account:

      THE COURT: Right. Okay so last night an issue arose with respect to the
      testimony of Jesse Grimes, the State’s expert, who was expected to testify as
      to the identity of the sender of a number of tweets.
              * * * We heard yesterday that Jesse Grimes was able to make a
      determination through computer software. The defense acknowledges that
      they knew what the conclusion was, but not the methodology. We also have
      independent verification of the identification of the identity of the Twitter




                                          13
         account, Jahmil T[.][23] testified that “Oh my God, it’s Loco” [phonetic sp],
         is Foulke’s[24] Twitter name.[25]
                Defense further argues as to the lack of identification of the sender.
         Reviewing the cases of Dickens and Griffin I’m satisfied the State has
         properly laid the foundation for authentication of these Tweets.

         Detective Grimes subsequently testified, consistent with the State’s proffer, that he

was able to access “the contacts, the call logs, . . . images, . . . videos, [and] Twitter chats”

on the iPhone. Detective Grimes identified State’s Exhibits 91 and 92 as screenshots

displaying the “direct message” conversation. The Detective further explained that, using

forensic software, he was able to compile those conversations into a separate report which

identified that the “direct messages” sent from the phone were authored by

“OMGitsLOCO” and that the phone received messages from “TheyLovingTc”.26




23
  Jahmil T. was the State’s primary witness with respect to the dynamics of Harris’s group
of friends.
24
     Foulke was a member of Harris’s group of friends, according to Jahmil T.
25
  Jahmil T. testified on cross-examination that “Foulke’s Twitter name” was
“OMGitsLOCO”:
     [ATTORNEY FOR HARRIS]: Do you remember what “OMGitsLOCO” is?
     [JAHMIL T.]: Yes.
     [ATTORNEY FOR HARRIS]: What is that?
     [JAHMIL T.]: Foulke’s Twitter name.
     [ATTORNEY FOR HARRIS]: Is it Foulke’s Twitter name?
     [JAHMIL T.]: Yes.
     [ATTORNEY FOR HARRIS]: And that would appear on his direct
     messages, correct?
     [JAHMIL T.]: Yes.
26
  Detective Grimes testified that, because there was a lock on the Android phone, he could
not perform a full forensic examination of the device as he had been able to do on the
iPhone.

                                            14
      The public “tweets” recovered from the Android phone recovered from Harris’s

person also were received in evidence as State’s Exhibits 88 and 89. State’s Exhibit 88,

with the timestamp of May 17, 2012, stated that things would “get real tomorrow” and was

accompanied by the same profile photo that had been identified as Harris’s:

            Tc x TΦ$∆
            @TheyLovingTc
      Shit finna get real tomorrow
      10:14 PM ∙ 17 May 12

State’s Exhibit 89, also reflecting the date of May 17, 2012, contained the same profile

photo and reiterated that the author was going “all in tomorrow”:

           Tc x TΦ$∆
           @TheyLovingTc
      Haha i cant do nun but sit back and laugh n[****]s on that grimy shit gotta
      sneak my yung n[***]a Fuck Probation im all in tomorrow
      10:26 PM ∙ 17 May 12

      Immediately after the trial judge determined that the “direct messages” were

admissible, State’s Exhibits 88 and 89, the “tweets” recovered from the Android phone,

were admitted. The trial judge determined that State’s Exhibits 88 and 89 were properly

authenticated, because they were authored at the same time as the “direct messages” that

had just been authenticated and they contained content that would only have been created

by “a few people”:

      THE COURT: Authenticated, thank you. These are done at the same time
      the public tweet is just after the direct message which ends with “we going
      to avenge Keon, hell yeah,” that’s at 10:12. And a statement made at 10, six
      – okay. He must be on two phones or flipping back and forth, I don’t know
      how that works, at 10:14 he says, “finally get real tomorrow,” that -- and the
      “hell yeah” to “we going to avenge keon” is at 10:12. And then the “I’m all
      in tomorrow” is at 10:26. Also, we have pictures of the defendant in the
      tweet as his tag – I don’t know these technical terms but it’s his picture. He’s


                                          15
         been identified by Jahmil T[.] as having the tag name, or whatever you call
         it, on Twitter as “They Loving it TC.” So I think they’re properly
         authenticated by their content and that there were only a few people that
         would be having the conversation that was depicted on these tweets. So these
         are coming in.

         Harris was convicted of first degree assault and the use of a handgun in the

commission of a crime of violence, for which he was sentenced to twenty years’

imprisonment. Harris noted a timely appeal to the Court of Special Appeals but before our

intermediate appellate court issued an opinion,27 we granted certiorari in Sublet v. State,

and Harris petitioned this Court to issue a Writ of Certiorari, which we granted, to answer

the following questions:

         1. Are one-to-one communications sent through a social networking website,
         such as direct tweets sent through Twitter, governed by the authentication
         standard announced in Griffin v. State, 419 Md. 343 (2011), or are they
         excepted from that standard, as announced in footnote 13 of the Griffin
         opinion, because they are like emails, texts, and instant messages?
                a. Should there remain a difference in assessing the authentication of
                evidence derived from social networking websites on the one hand
                and emails/texts/instant messages on the other, given the identity-
                separation concern attendant to all those forms of communication?
         2. If the standard in Griffin applies, did the court abuse its discretion in
         admitting Twitter messages purportedly written by petitioner when no
         extrinsic evidence connected petitioner to the account or the authorship of
         the messages?

Harris v. State, 440 Md. 114, 99 A.3d 778 (2014).

                                  Monge-Martinez v. State



27
     The question presented to our intermediate appellate court was:
         1. Did the court abuse its discretion in admitting Twitter messages
         purportedly written by Mr. Harris when the State failed to properly
         authenticate those messages under Griffin v. State, 419 Md. 343 (2011)?


                                            16
       Carlos Alberto Monge-Martinez, the third Petitioner herein, was charged with

attempted second degree murder and two counts each of first degree assault, second degree

assault and reckless endangerment arising out of an April 23, 2012 altercation with a former

girlfriend, Dorothy Ana Santa Maria, during which Ms. Santa Maria was stabbed.

According to the State’s theory of the case, Monge-Martinez had intentionally instigated

the fight, while Monge-Martinez posited that he was defending himself from Ms. Santa

Maria. The State sought to introduce Facebook messages28 received by Ms. Santa Maria

that had allegedly been sent by Monge-Martinez reflecting that he had expressed remorse

for his actions.29

       During Ms. Santa Maria’s testimony, the Assistant State’s Attorney elicited that she

had received Facebook messages, ostensibly from Monge-Martinez. The first Facebook

message, State’s Exhibit 19, indicated that it had been sent at 4:21 p.m. and was an apology

for getting “carried away by the anger”:

       Carlos Monge
       Monday, April 23 at 4:21 PM
       Sent from Web




28
  On Facebook, “Messages” may be sent to any Facebook user and are visible only to the
profile to which they were sent. Sending a Message, Facebook.com, https://www.
facebook.com/help/326534794098501/ (last visited Apr. 20, 2015).
29
   In the Court of Special Appeals, Monge-Martinez moved to supplement the record with
certified translations of the Facebook messages from the original Spanish into English.
The motion was granted by the intermediate appellate court, and we utilize those
translations in our exposition.



                                           17
      I wish and one day you forgive me. I got carried away by the anger and your
      deceit. You didn’t lie yesterday, you’ve been ridiculing me for day and you
      know it’s the truth.

The second Facebook message, State’s Exhibit 20, showed a date of April 23, in which

Monge-Martinez allegedly stated that he “no longer want[s] to live with this”:

      Carlos Monge
      Monday, April 23 at [glare30] PM
      Sent from Web

      I do not know what I will do I no longer want to live with this.

The third Facebook message, State’s Exhibit 21, indicated that it was received on April 23

at 4:36 PM and admonished Ms. Santa Maria for “deciev[ing]” and “disconcert[ing]” the

author of the message:

      Carlos Monge
      Monday, April 23 at 4:36 PM
      Sent from Web

      I love you but knowing how you deceived me disconcerted me. I hope you
      are doing well. I love you.

      When the State sought to introduce State’s Exhibits 19, 20 and 21, which depicted

screenshots of Ms. Santa Maria’s phone displaying the messages, Monge-Martinez’s

attorney objected to their admission on the basis that “the State will not be able to show

any evidence that’s referring to the incident on the 23rd.” The trial court permitted the

Assistant State’s Attorney to question Ms. Santa Maria to establish the authenticity of the

Facebook messages.



30
  State’s Exhibit 20 contained a glare on the page that occluded the timestamp of the
photograph.

                                          18
       Ms. Santa Maria, thereafter, identified the exhibits as “Facebook messages that

[Monge-Martinez] wrote me”, which she had received while in the hospital being treated

for her injury:

       [STATE’S ATTORNEY]: Back to when you were in the hospital, you
       received a couple Facebook messages from [Monge-Martinez]; is that
       correct?
       [MS. SANTA MARIA]: Yes, ma’am.
       [STATE’S ATTORNEY]: Showing you State’s Exhibits 19, 20 and 21, you
       recognize State’s 19, 20 and 21?
       [MS. SANTA MARIA]: Yes, ma’am.
       [STATE’S ATTORNEY]: What are they?
       [MS. SANTA MARIA]: They’re Facebook messages that he wrote me.

According to Ms. Santa Maria, the Exhibits were screenshots of her phone displaying the

Facebook messages, which the trial judge admitted in evidence over objection:

       [STATE’S ATTORNEY]: Let me ask it this way. Was there a photograph
       taken of your phone of the Facebook messages?
       [MS. SANTA MARIA]: Yes.
       [STATE’S ATTORNEY]: And is State’s 19, 20 and 21 a photograph of your
       screen from northbound?
       [MS. SANTA MARIA]: Yes, ma’am.
       [STATE’S ATTORNEY]: State enters 19, 20 and 21.
       [ATTORNEY FOR MONGE-MARTINEZ]: Please note our objection.
       THE COURT: Over objection, admitted.

       Monge-Martinez was ultimately found guilty of second degree assault and openly

carrying a dangerous weapon with the intent to injure. He was sentenced to ten years’

imprisonment for the assault and three years’ imprisonment for carrying a dangerous

weapon, to run concurrently.




                                        19
         The Court of Special Appeals, in an unreported opinion, affirmed the conviction and

sentence, having found no error in the admission of the Facebook messages.31 We granted

Monge-Martinez’s Petition for Certiorari to answer the following questions:

         1. Are one-to-one communications sent through a social networking website,
         such as direct messages sent through Facebook, governed by the
         authentication standard announced in Griffin v. State, 419 Md. 343 (2011),
         or are they excepted from that standard, under footnote 13 of the Griffin
         opinion, because they are like emails, texts, and instant messages?
                a. Should there remain a difference in assessing the authentication of
                evidence derived from social networking websites on the one hand
                and emails/texts/instant messages on the other, given the fabrication
                concerns attendant to all those forms of communication?
         2. Did the trial court abuse its discretion in admitting supposed Facebook
         messages purportedly written by Petitioner, where the recipient testified only
         that Petitioner “was on my account” and that photographs of the messages
         were taken?
         3. Did the Court of Special Appeals err in deeming harmless any error?

Monge-Martinez v. State, 440 Md. 114, 99 A.3d 778 (2014).

                                         Authentication

         Authentication has been defined as “the act of proving that something (as a

document) is true or genuine, esp[ecially] so that it may be admitted as evidence”. Black’s

Law Dictionary 157 (10th ed. 2014). Authentication of a matter prior to its admission “is

not an[] artificial principal of evidence, but an inherent logical necessity”, (7 J. Wigmore,

Evidence § 2129 (Chadbourn Rev. 1978)), and is integral to establishing its relevancy. See



31
     The questions before the Court of Special Appeals were:
         1. Did the trial court abuse its discretion in propounding a flight instruction?
         2. Did the trial court abuse its discretion in admitting unauthenticated
         messages attributed to Appellant and did the trial court err in permitting the
         complainant to translate the messages?

                                             20
2 McCormick on Evidence § 221 (7th ed. 2013) (“The proponent’s assertion as to why the

writing is relevant determines what the proponent claims the writing is, typically that it has

some specific connection to a person or organization, whether through authorship or some

other relation. It is this connection that must be proved to authenticate the writing.”).

       The role of judge as “gatekeeper” is essential to authentication, because of jurors’

tendency, “when a corporal object is produced as proving something, to assume, on sight

of the object, all else that is implied in the case about it”, for which Wigmore provided the

following example:

       [I]t is easy for a jury, when witnesses speak of a horse being stolen from Doe
       by Roe, to understand, when Doe is proved to have lost the horse, that it still
       remains to be proved that Roe took it; the missing element can clearly be
       kept separate as an additional requirement. But if the witness to the theft
       were to have a horse brought into the courtroom, and to point it out
       triumphantly, “If you doubt me, there is the very horse!”, this would go a
       great way to persuade the jury of the rest of his assertion and to ignore the
       weakness of his evidence of Roe’s complicity. The sight of the horse,
       corroborating in the flesh, as it were, a part of the witness’ testimony, tends
       to verify the remainder.

Wigmore, supra, § 2129.




                                           21
      We adopted Maryland Rule 5-901,32 as well as the rest of the Maryland Rules of

Evidence, in 1993, to codify our common law of evidence, (see 21:1 Maryland Register P-




32
  As adopted, Maryland Rule 5-901 provided, in pertinent part:
       (a) General Provision.
               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.
       (b) Illustrations
               By way of illustration only, and not by way of limitation, the
       following are examples of authentication or identification conforming with
       the requirements of this Rule:
               (1) Testimony of Witness With Knowledge
                   Testimony of a witness with knowledge that the offered evidence
                   is what it is claimed to be.
               (2) Non-Expert Opinion on Handwriting
                   Non-expert opinion as to the genuineness of handwriting, based
                   upon familiarity not acquired for purposes of the litigation.
               (3) Comparison With Authenticated Specimens
                   Comparison by the court or an expert witness with specimens
                   that have been authenticated.
               (4) Circumstantial Evidence
                   Circumstantial evidence, such as appearance, contents,
                   substance, internal patterns, location, or other distinctive
                   characteristics, that the offered evidence is what it is claimed to
                   be.
21:1 Maryland Register P-16 (Jan. 7, 1994). Rule 5-901 was amended, in 1998, to add
cross-references to other Maryland Rules not relevant to our discussion here, and has
otherwise remained unchanged. See 24:2 Maryland Register 1543 (Oct. 24, 1997) (One
Hundred Thirty-Eighth Report of The Standing Committee on Rules of Practice and
Procedure recommending amendment of Rule 5-901 to add cross-references); 25:6
Maryland Register 446 (Mar. 13, 1998) (Rules Order adopting amendment to Rule 5-901
proposed in 138th Report of the Rules Committee).



                                        22
1 (Jan 7, 1994)), which was based upon Federal Rule of Evidence 901,33 (see Court of

Appeals of Maryland, Rules Order, 21:1 Maryland Register P1). “[W]e take into account

common law principles on the same subject matter when interpreting the rules of evidence

set forth in Title 5.” Brooks v. State, 439 Md. 698, 719, 98 A.3d 236, 248 (2014). As such,

the opportunities and challenges of determining authorship of social networking

communications and postings are best understood in the historical context of

authentication. See Ira P. Robbins, Writings on the Wall: The Need for an Authorship-

Centric Approach to the Authentication of Social-Networking Evidence, 13 Minn. J.L. Sci.

& Tech. 1, 16-17 (discussing authentication in terms of verifying authorship).




33
  Federal Rule of Evidence 901, in 1993, stated, in pertinent part:
      (a) General provision.—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.
      (b) Illustrations.—By way of illustration only, and not by way of limitation,
          the following are examples of authentication or identification conforming
          with the requirements of this rule:
          (1) Testimony of witness with knowledge.—Testimony that a matter is
              what it is claimed to be.
          (2) Nonexpert opinion on handwriting.—Nonexpert opinion as to the
              genuineness of handwriting, based upon familiarity not acquired for
              purposes of the litigation.
          (3) Comparison by trier or expert witness.—Comparison by the trier of
              fact or by expert witnesses with specimens which have been
              authenticated.
          (4) Distinctive characteristics and the like.—Appearance, contents,
              substance, internal patterns, or other distinctive characteristics, taken
              in conjunction with circumstances.
Fed. R. Evid. 901 (1993).



                                           23
       With respect to the authentication of the authorship of writings,34 they “purport on

their face to be of a certain person’s authorship” and, therefore, various approaches have

developed “for separating the external evidence of authorship from the mere existence of

the purporting document.” Wigmore, supra, § 2130. The most straightforward approach

to authenticating a writing is to ask an individual with personal knowledge about the

document whether the matter was what it purported to be. E.g. Matthews v. J.B. Colt Co.,

145 Md. 667, 672, 125 A. 840, 841 (1924) (testimony of witness that he saw defendant

sign contract was sufficient to warrant its admission). Familiarity with the purported

author’s signature also has been a basis for authentication, provided that such familiarity

was proven prior to authentication. Smith v. Walton, 8 Gill 77, 77 (Md. 1849) (“A witness

who has seen a party write, or who has corresponded with him, is qualified to speak with

respect to the genuineness of his signature.”).35 In other circumstances, comparison to a

known exemplar may be accomplished through expert testimony or within the confines of

the jury room. See, e.g., Hoover v. Hoover, 187 Md. 646, 650, 51 A.2d 166, 168 (1947)

(“A bank official, whose business it was to know handwriting, testified as an expert that in

his opinion the writing on the disputed note, and the admitted writing of [the alleged author]



34
   Social media communications pose similar authentication challenges to writings in the
traditional sense, like letters and other documents. See 5 Jack B. Weinstein & Margaret A.
Berger, Weinstein’s Federal Evidence § 901.04[1] (Joseph M. McLaughlin ed., Matthew
Bender 2d ed. 2015) (discussing the use of handwriting to authenticate a document as
having been signed or written by the alleged author).
35
  Nevertheless, “where there is a genuine issue as to authenticity parties ought endeavor
to bolster such testimony with stronger evidence, as by expert testimony”. 6A Lynn
McLain, Maryland Evidence—State and Federal § 901:3 (3d ed. 2013).

                                           24
on the autographed note, were the same.”); Haile v. Dinnis, 184 Md. 144, 153-54, 40 A.2d

363, 367 (1944) (jury compared records against previously admitted exemplars to

determine if they were authentic). In the absence of known exemplars, authentication of a

writing also could be obtained were the contents or subject matter of the writing to “contain

circumstantial evidence indicating the identity of its author”, (5 Jack B. Weinstein &

Margaret A. Berger, Weinstein’s Federal Evidence § 901.04[3][a] (Joseph M. McLaughlin

ed., Matthew Bender 2d ed. 2015)), by, for example, containing information known only

to a chosen few. See, e.g., United States v. Sutton, 426 F.2d 1202, 1208 n.53 (D.C. Cir.

1969). Authentication or proof of authorship of a writing also could be accomplished under

the “reply letter doctrine”, (6A Lynn McLain, Maryland Evidence—State and Federal §

901:5(c) (3d ed. 2013)), which instructed “that where a letter ha[d] been received by the

due course of mail in answer to a prior letter of the receiver, with the name of the addressee

or such prior letter signed thereto, a presumption [arose] that it [wa]s the letter of the person

whose name [wa]s signed thereto.” Am. Bonding Co. of Baltimore v. Ensey, 105 Md. 211,

65 A. 921, 925 (1907) (internal quotation marks omitted).

       As it has been a challenge to authenticate writings, especially in the early period of

the Republic,36 so has been authentication of social networking websites and posts, because

traditional opportunities for authentication are reduced by the lack of handwriting, the



36
  See, e.g., Smith v. Easton, 54 Md. 138, 39 Am. Rep. 355 (1880) (discussing the challenge
of authenticating a telegram); Smith v. Walton, 8 Gill 77 (Md. 1849) (authentication of a
receipt); Gordon v. Hickman, 4 H. & McH. 217 (Md. Gen. 1798) (authentication of record
books required proof of identity of witnesses who had signed the books).


                                            25
absence of a physical location of the document and the inherent anonymity provided by

posting on websites. See generally Allison Stiles, Everyone’s A Critic: Defamation and

Anonymity on the Internet, 2002 Duke L. & Tech. Rev. 0004 (2002), available at http://

scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1045&context=dltr         (last   visited

Apr. 20, 2015).

       Social networks, which “invite users to establish online profiles through which they

can share information”, (Ossian, supra, § 1:2.1), require the user to register “using a valid

e-mail address; first and last names; personal password; country; postal code; date of birth

. . . ; and gender”, (John G. Browing, The Lawyer’s Guide to Social Networking 19 (2010)).

Although biographical information is required to establish a social networking profile,

“there doesn’t appear to be a way to validate such information before a page can be

created”. Id. On a social networking website, users may “post their own personal

information, photographs and videos” and, from their profiles, “they can send and receive

messages to and from others”. 2 McCormick, supra, § 227. These messages may be public

or private and visible to participants in the conversation.

       Social networking material provides the fodder for civil disputes and defenses, as

well as proof of violations of criminal laws. See, e.g., United States v. Elonis, 897 F. Supp.

2d 335, 338 (E.D. Pa. 2012), aff’d, 730 F.3d 321 (3d Cir. 2013) (Defendant violated federal

law prohibiting transmitting interstate communications containing any threat to injure a

person by posting threatening comments on Facebook); State v. Buhl, 100 A.3d 6, 8-9

(Conn. App. 2014) (Facebook entries received in evidence to show the defendant had

harassed the victim); Moore v. State, 763 S.E.2d 670, 674 (Ga. 2014) (Defendant’s


                                           26
Facebook posts used to establish guilt for his murder conviction); Commonwealth v. Foster

F., 20 N.E.3d 967, 970-71 (Mass. App. Ct. 2014) (Facebook messages between juvenile

defendant and victim received in evidence); State v. McKinley, 764 S.E.2d 303, 326 (W.Va.

2014) (Facebook evidence received during murder trial).

      Authentication of social networking communications and postings has been and

continues to be a significant issue. See Ossian, supra, § 9:7.2 (“The second evidentiary

requirement [after relevance]—and the one receiving the most attention—is

authentication.”); Griffin, 419 Md. at 352, 19 A.3d at 421 (“The identity of who generated

the profile may be confounding, because ‘a person observing the online profile of a user

with whom the observer is unacquainted has no idea whether the profile is legitimate.’”),

quoting Nathan Petrashek, Comment, The Fourth Amendment and the Brave New World

of Online Social Networking, 93 Marq. L.Rev. 1495, 1499 n.16 (2009-2010).

      Authentication of a profile on a social networking website depends upon whether

the profile was created by its purported owner and/or whether a “cracker”37 had accessed

the website.   See Ossian, supra, § 9:7.2 (noting that a major component of the

authentication of social networking evidence is “access and control of the social media

information”); Lawrence Morales II, Social Media Evidence: “What You Post or Tweet

Can and Will Be Used Against You in a Court of Law, 60 The Advoc. (Texas) 32, 36 (2012)



37
   “A cracker is an individual who attempts to access computer systems without
authorization. These individuals are often malicious, as opposed to hackers, and have
many means at their disposal for breaking into a system.” Internet Users’ Glossary, IETF
12 (Aug. 1996), https://tools.ietf.org/html/rfc1983 (last visited Apr. 20, 2015).


                                         27
(“It is common for witnesses faced with an incriminating statement on their social media

profile to claim that it must have been written by someone else, which they claim is possible

because other people know their social media password or use their computer. . . . These

unique characteristics of social media websites present authentication challenges for courts

and litigants.”). Unauthorized access of a profile can occur even without password sharing

when an individual remains logged in to his or her account through their cell phone or

computer and leaves them unattended, thereby allowing third parties access to the profile.

See State v. Eleck, 23 A.3d 818, 822 (Conn. App. Ct. 2011), aff’d on other grounds, 100

A.3d 817 (Conn. 2014) (“[A]ccount holders frequently remain logged in to their accounts

while leaving their computers and cell phones unattended.”). Individuals may also obtain

unauthorized access to an account by “guessing or finding . . . a valid password”. Michael

Lee et. al, Electronic Commerce, Hackers, and the Search for Legitimacy: A Regulatory

Proposal, 14 Berkeley Tech. L.J. 839, 850 (1999); see generally id. at 846-50 (presenting

an overview of different methods of hacking).

       In Griffin, 419 Md. at 346-47, 19 A.3d at 417, we had our first occasion to address

authentication of social networking evidence. The admission in evidence of a screenshot

of a MySpace page of the girlfriend of Griffin, who was on trial for murder, was in issue.

The printout of the “screenshot” had been made by the lead investigator of the case, who

testified that he had printed it from his computer. Jessica Barber, the girlfriend, had been

on the stand as a witness, but had not been questioned regarding her ownership of the

profile. The screenshot was relevant, the State proffered, because it showed that Ms.

Barber had, prior to trial, threatened a witness to the murder.


                                           28
       The screenshot contained a picture “of a person that look[ed] like Jessica Barber”,

(id. at 349, 19 A.3d at 419), and described a twenty-three year-old female from Port

Deposit, listing her birthday as “10/02/1983”, as well as the statement:

      FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U
      KNOW WHO YOU ARE!!

Id. at 348, 19 A.3d at 418.

       We recognized in Griffin that authentication of social networking evidence can pose

significant problems, “because anyone can create a fictitious account and masquerade

under another person’s name or can gain access to another’s account by obtaining the user’s

username and password”. Id. at 352, 19 A.3d at 421. We rejected the mere printout of the

screenshot in issue as authentic, because the lead investigator, who had created the

document, lacked any knowledge about ownership of or who created the profile.

       We suggested, however, under Rules 5-901(b)(1) and (4), three non-exclusive

means of authentication of ownership of such websites. The first and most obvious method

for authentication, we said, “would be to ask the purported creator if she indeed created the

profile and also if she added the posting in question”. Id. at 363, 19 A.3d at 427. The

second approach we discussed was to “search the computer of the person who allegedly

created the profile and posting and examine the computer’s internet history and hard drive

to determine whether that computer was used to originate the social networking profile and

posting in question.” Id. The third of the non-exhaustive means of authentication we

suggested was to “obtain information directly from the social networking website”, which




                                          29
would link together the profile and the entry to the person, or persons, who had created

them. Id. at 364, 19 A.3d at 428.38

       In the period since Griffin had been decided, cases in which authentication of social

networking websites and postings has been addressed have proliferated.39 In the shadow


38
   We also suggested in Griffin’s footnote thirteen that a public posting on a social
networking page differs from private messages visible to specified individuals with respect
to authentication. E-mails and other directed communications, for example, may present a
greater opportunity for authentication by circumstantial evidence. See Griffin, 419 Md. at
361 n.13, 19 A.3d at 426 n.13 (citing numerous cases).
39
   See, e.g., United States v. Brinson, 772 F.3d 1314 (10th Cir. 2014) (authentication of
Facebook messages); United States v. Vayner, 769 F.3d 125 (2d Cir. 2014) (authentication
of posts on VK.com, a Russian equivalent of Facebook); United States v. Hassan, 742 F.3d
104 (4th Cir.), cert. denied sub nom. Sherifi v. United States, 573 U.S. __, 134 S. Ct. 2737,
189 L. Ed. 2d 774 (2014), and cert. denied, 574 U.S. __, 135 S. Ct. 157, 190 L. Ed. 2d
115 (2014), and cert. denied sub nom. Yaghi v. United States, 574 U.S. __, 135 S. Ct. 192,
190 L. Ed. 2d 115 (2014) (authentication of Facebook post); United States v. Adams, 722
F.3d 788, 821 (6th Cir. 2013) (authentication of MySpace message); United States v.
Lebowitz, 676 F.3d 1000 (11th Cir. 2012) (authentication of MySpace messages); Juror
No. One v. Superior Court, 142 Cal. Rptr. 3d 151 (Cal. Ct. App. 2012) (authentication of
Facebook post); Connecticut v. Eleck, 23 A.3d 818 (Conn. App. Ct. 2011) (authentication
of Facebook messages), aff’d on other grounds, 100 A.3d 817 (Conn. 2014); Parker v.
State, 85 A.3d 682 (Del. 2014) (authentication of Facebook posts); Moore v. State, 763
S.E.2d 670 (Ga. 2014) (authentication of Facebook posts); Stapp v. Jansen, 988 N.E.2d
234 (Ill. App. 2013) (authentication of MySpace and Facebook messages); State v. Raskie,
269 P.3d 1268 (Kan. 2012) (authentication of MySpace messages); Commonwealth v.
Foster F., 20 N.E.3d 967 (Mass. App. Ct. 2014) (authentication of Facebook messages);
Smith v. State, 136 So. 3d 424 (Miss. 2014) (authentication of Facebook messages); State
v. Snow, 437 S.W.3d 396 (Mo. Ct. App. 2014) (authentication of MySpace message); State
v. Paster, 15 N.E.3d 1252 (Ohio Ct. App. 2014) (authentication of Facebook posts); State
v. Nance, 393 S.W.3d 212 (Tenn. Crim. App. 2012) (authentication of MySpace posts);
Campbell v. State, 382 S.W.3d 545 (Tex. App. 2012) (authentication of Facebook
messages); Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) (authentication of
MySpace profile); State v. Lawrence, 80 A.3d 58 (Vt. 2013) (authentication of MySpace
profile).


                                          30
of Griffin, we today are asked to cull the various cases to discern a standard for

authentication of social networking evidence. In so doing, we find succor in the standard

articulated by the United States Court of Appeals for the Second Circuit in United States

v. Vayner, 769 F.3d 125 (2014), which, on facts analogous to those in Griffin, reached a

similar conclusion.

      In Vayner, Aliaksandr Zhyltsou was charged with the transfer of a false

identification document. Id. at 127. The government’s primary witness against Zhyltsou,

Vladyslav Timku, testified that he “was familiar with Zhyltsou’s work as a forger because

he had previously paid Zhyltsou to create false” documents. Id. According to Timku,

Zhyltsou had sent him the completed forgery via e-mail from the address,

“fromazmadeuz@gmail.com”. Id. However, “near the conclusion of the prosecution’s

case, only Timku’s testimony directly connected Zhyltsou with the [e-mail] address”. Id.

at 127-28.

      The government, before resting, indicated to the district court that it planned to call

an unexpected final witness, Special Agent Robert Cline of the State Department’s

Diplomatic Security Service. Id. at 128. According to the government, it would “introduce

a printout of a web page that the government claimed to be Zhyltsou’s profile on VK.com

(‘VK’), which Special Agent Cline described as ‘the Russian equivalent of Facebook.’”

Id.

      Zhyltsou objected to the admissibility of the printout on the grounds that it had not

been properly authenticated under Federal Rule of Evidence 901. The district court

overruled Zhyltsou’s objection, finding that the VK page was, in fact, Zhyltsou’s VK page


                                          31
and there was “‘no question about the authenticity of th[e] document so far as it’s coming

off the Internet now.’” Id.

         As summarized in the opinion of the Second Circuit, Special Agent Cline then

testified with respect to the VK page:

         During his testimony, Special Agent Cline identified the printout as being
         from “the Russian equivalent of Facebook.” He noted to the jury that the
         page purported to be the profile of “Alexander Zhiltsov” (an alternate
         spelling of Zhyltsou’s name), and that it contained a photograph of Zhyltsou.
         Importantly for the government’s case, Special Agent Cline next pointed out
         that under the heading, “Contact Information,” the profile listed “Azmadeuz”
         as “Zhiltsov’s” address on Skype (a service that Special Agent Cline
         described as a “voiceover IP provider”). The web page also reflected that
         “Zhiltsov” worked at a company called “Martex International” and at an
         Internet café called “Cyber Heaven,” which corresponded with Timku’s
         earlier testimony that Zhyltsou and Timku had both worked for those entities.
         On cross-examination, Special Agent Cline admitted that he had only a
         “cursory familiarity” with VK, had never used the site except to view this
         single page, and did not know whether any identity verification was required
         in order for a user to create an account on the site.

Id. at 128-29.

         The Second Circuit recognized that, initially, authentication of the VK page was in

issue:

                “The requirement of authentication is . . . a condition precedent to
         admitting evidence.” [United States v. ]Sliker, 751 F.2d [477,] 497; see also
         United States v. Maldonado–Rivera, 922 F.2d 934, 957 (2d Cir.1990) (“In
         general, a document may not be admitted into evidence unless it is shown to
         be genuine.”). Rule 901 of the Federal Rules of Evidence governs the
         authentication of evidence and provides, in pertinent part: “To satisfy the
         requirement of authenticating or identifying an item of evidence, the
         proponent must produce evidence sufficient to support a finding that the item
         is what the proponent claims it is.” Fed.R.Evid. 901(a).

Id. at 129. The Second Circuit instructed that, “‘[t]his requirement is satisfied if sufficient

proof has been introduced so that a reasonable juror could find in favor of authenticity or


                                            32
identification.’” Id. at 129-30, quoting United States v. Pluta, 176 F.3d 43, 49 (2d

Cir.1999) (internal quotation marks omitted). Thereafter, the jury ultimately is left to make

the “determination as to whether the evidence is, in fact, what its proponent claims”. Id. at

130, citing Sliker, 751 F.2d at 499.

       Under the standard articulated in Vayner, the preliminary determination of

authentication must be made by the trial judge and “depends upon a context-specific

determination whether the proof advanced is sufficient to support a finding that the item in

question is what its proponent claims it to be”, (id.), based upon “sufficient proof . . . so

that a reasonable juror could find in favor of authenticity or identification”, (id. quoting

Pluta, 176 F.3d at 49):

               Rule 901 “does not definitively establish the nature or quantum of
       proof that is required” preliminarily to authenticate an item of evidence.
       [Sliker, 751 F.2d] at 499. “The type and quantum of evidence” required is
       “related to the purpose for which the evidence is offered,” id. at 488, and
       depends upon a context-specific determination whether the proof advanced
       is sufficient to support a finding that the item in question is what its proponent
       claims it to be. We have said that “[t]he bar for authentication of evidence is
       not particularly high.” United States v. Gagliardi, 506 F.3d 140, 151 (2d
       Cir.2007). But even though “[t]he proponent need not rule out all
       possibilities inconsistent with authenticity, or . . . prove beyond any doubt
       that the evidence is what it purports to be,” id. (internal quotation marks
       omitted), there must nonetheless be at least “sufficient proof . . . so that a
       reasonable juror could find in favor of authenticity or identification,” Pluta,
       176 F.3d at 49 (internal quotation marks omitted).
               The “proof of authentication may be direct or circumstantial.” United
       States v. Al–Moayad, 545 F.3d 139, 172 (2d Cir.2008). The simplest (and
       likely most common) form of authentication is through “the testimony of a
       ‘witness with knowledge’ that ‘a matter is what it is claimed to be.’” United
       States v. Rommy, 506 F.3d 108, 138 (2d Cir.2007) (quoting Fed.R.Evid.
       901(b)(1) (pre-2011 amendments)). This is by no means exclusive, however:
       Rule 901 provides several examples of proper authentication techniques in
       different contexts, see Fed.R.Evid. 901(b), and the advisory committee’s
       note states that these are “not intended as an exclusive enumeration of


                                            33
      allowable methods but are meant to guide and suggest, leaving room for
      growth and development in this area of the law,” Fed.R.Evid. 901 advisory
      committee’s note (Note to Subdivision (b)).

Id. (footnote omitted). Illustration of authentication techniques, according to the Second

Circuit, could be derived from documents:

             Some examples illustrate the point. For instance, we have said that a
      document can be authenticated by “distinctive characteristics of the
      document itself, such as its ‘[a]ppearance, contents, substance, internal
      patterns, or other distinctive characteristics, taken in conjunction with the
      circumstances.’” Maldonado–Rivera, 922 F.2d at 957 (alteration in original)
      (quoting Fed.R.Evid. 901(b)(4) (pre-2011 amendments)); see also Sliker,
      751 F.2d at 488 (contents of alleged bank records, in conjunction with their
      seizure at purported bank office, provided sufficient proof of their connection
      to allegedly sham bank). Or, where the evidence in question is a recorded
      call, we have said that “[w]hile a mere assertion of identity by a person
      talking on the telephone is not in itself sufficient to authenticate that person’s
      identity, some additional evidence, which need not fall into any set pattern,
      may provide the necessary foundation.” [United States v.] Dhinsa, 243 F.3d
      [635,] 658-59 (brackets and internal quotation marks omitted); see also
      Sliker, 751 F.2d at 499 (voice on tape recording was sufficiently
      authenticated as defendant’s based on comparison of taped voice with
      defendant’s trial testimony). And in a case where credit card receipts
      purportedly signed by the defendant would have tended to support his alibi
      defense, we ruled that the defendant’s copies had been sufficiently
      authenticated, despite some question as to when these copies had been
      signed, where the defendant offered testimony from store managers as to how
      the receipts were produced, testimony from the defendant’s wife (a joint
      holder of the credit card) that she had not made the purchases in question,
      and testimony from a handwriting expert that the defendant’s signature was
      genuine. United States v. Tin Yat Chin, 371 F.3d 31, 35-38 (2d Cir.2004).

Id. at 130-31 (footnote omitted). The Second Circuit, finally, iterated that even after




                                           34
evidence is authenticated, “‘the issue of [its] ultimate reliability [is left] to the jury.” 40 Id.

at 131, quoting United States v. Tropeano, 252 F.3d 653, 661 (2d Cir. 2001):

              As we have said, “[a]uthentication of course merely renders
       [evidence] admissible, leaving the issue of [its] ultimate reliability to the
       jury.” United States v. Tropeano, 252 F.3d 653, 661 (2d Cir. 2001). Thus,
       after the proponent of the evidence has adduced sufficient evidence to
       support a finding that the proffered evidence is what it is claimed to be, the
       opposing party “remains free to challenge the reliability of the evidence, to
       minimize its importance, or to argue alternative interpretations of its
       meaning, but these and similar other challenges go to the weight of the
       evidence—not to its admissibility.” Tin Yat Chin, 371 F.3d at 38.

Id.

       The court, however, “conclude[d] that the district court abused its discretion in

admitting the VK web page”. Id. It reasoned “that information about Zhyltsou appeared

on the VK page . . . . But there was no evidence that Zhyltsou himself had created the page

or was responsible for its contents.” Id. at 132. The court opined, moreover, that the mere

fact that the page existed on the internet “does not permit a reasonable conclusion that [it]

was created by the defendant or on his behalf”:



40
  In footnote fifteen of Griffin, 419 Md. at 365 n.15, 19 A.3d at 428 n.15, we cited Lorraine
v. Markel Am. Insurance Co., 241 F.R.D. 534, 539-40 (D.Md. 2007), which explained
“conditional relevance”:
       In essence, determining whether [electronically stored information] is
       authentic, and therefore relevant, is a two step process. First, “[b]efore
       admitting evidence for consideration by the jury, the district court must
       determine whether its proponent has offered a satisfactory foundation from
       which the jury could reasonably find that the evidence is authentic.” Then,
       “because authentication is essentially a question of conditional relevancy, the
       jury ultimately resolves whether evidence admitted for its consideration is
       that which the proponent claims.”
Id., quoting United States v. Branch, 970 F.2d 1368, 1370-71 (4th Cir. 1992)
(footnotes omitted).

                                             35
               As noted above, Rule 901 requires “evidence sufficient to support a
       finding that the item is what the proponent claims it is.” It is uncontroverted
       that information about Zhyltsou appeared on the VK page: his name,
       photograph, and some details about his life consistent with Timku’s
       testimony about him. But there was no evidence that Zhyltsou himself had
       created the page or was responsible for its contents. Had the government
       sought to introduce, for instance, a flyer found on the street that contained
       Zhyltsou’s Skype address and was purportedly written or authorized by him,
       the district court surely would have required some evidence that the flyer did,
       in fact, emanate from Zhyltsou. Otherwise, how could the statements in the
       flyer be attributed to him? Cf. Dhinsa, 243 F.3d at 658-59 (“[A] mere
       assertion of identity by a person talking on the telephone is not in itself
       sufficient to authenticate that person's identity . . . .”). And contrary to the
       government’s argument, the mere fact that a page with Zhyltsou’s name and
       photograph happened to exist on the Internet at the time of Special Agent
       Cline’s testimony does not permit a reasonable conclusion that this page was
       created by the defendant or on his behalf.

Id. The page could not be authenticated by “distinctive characteristics”, the Second Circuit

continued, because “all the information contained on the VK page allegedly tying the page

to Zhyltsou was also known by Timku and likely others, some of whom may have had

reasons to create a profile page falsely attributed to the defendant”:

               It is true that the contents or “distinctive characteristics” of a
       document can sometimes alone provide circumstantial evidence sufficient
       for authentication. Fed. R. Evid. 901(b)(4). For example, a writing may be
       authenticated by evidence “that the contents of the writing were not a matter
       of common knowledge.” Maldonado–Rivera, 922 F.2d at 957 (brackets and
       internal quotation marks omitted). Here, however, all the information
       contained on the VK page allegedly tying the page to Zhyltsou was also
       known by Timku and likely others, some of whom may have had reasons to
       create a profile page falsely attributed to the defendant. Other than the page
       itself, moreover, no evidence in the record suggested that Zhyltsou even had
       a VK profile page, much less that the page in question was that page. Nor
       was there any evidence that identity verification is necessary to create such
       a page with VK, which might also have helped render more than speculative
       the conclusion that the page in question belonged to Zhyltsou.

Id. at 132-33.



                                           36
       The Second Circuit, however, demurred from expressing a “view on what kind of

evidence would have been sufficient to authenticate the VK page”, because the “evidence

necessary to authenticate a web page will always depend on context”:

       We express no view on what kind of evidence would have been sufficient to
       authenticate the VK page and warrant its consideration by the jury. Evidence
       may be authenticated in many ways, and as with any piece of evidence whose
       authenticity is in question, the “type and quantum” of evidence necessary to
       authenticate a web page will always depend on context. Sliker, 751 F.2d at
       488. Given the purpose for which the web page in this case was introduced,
       however—to corroborate Timku’s testimony that it was Zhyltsou who used
       the moniker “azmadeuz” for the [e-mail] address from which the forged birth
       certificate was sent—Rule 901 required that there be some basis beyond
       Timku’s own testimony on which a reasonable juror could conclude that the
       page in question was not just any Internet page, but in fact Zhyltsou’s profile.
       No such showing was made and the evidence should therefore have been
       excluded.

Id. at 330.

       The standard articulated in Vayner, which we embrace, is utilized by other federal

and State courts addressing authenticity of social media communications and postings.

See, e.g., United States v. Hassan, 742 F.3d 104, 133 (4th Cir.), cert. denied sub nom.

Sherifi v. United States, 573 U.S. __, 134 S. Ct. 2737, 189 L. Ed. 2d 774 (2014), and cert.

denied, 574 U.S. __, 135 S. Ct. 157, 190 L. Ed. 2d 115 (2014), and cert. denied sub nom.

Yaghi v. United States, 574 U.S. __, 135 S. Ct. 192, 190 L. Ed. 2d 115 (2014) (“Importantly,

the burden to authenticate under Rule 901 is not high . . . a district court’s role is to serve

as gatekeeper in assessing whether the proponent has offered a satisfactory foundation from

which the jury could reasonably find that the evidence is authentic.” (citations omitted));

Parker v. State, 85 A.3d 682, 688 (Del. 2014) (“Thus, the trial judge as the gatekeeper of

evidence may admit the social media post when there is evidence sufficient to support a


                                           37
finding by a reasonable juror that the proffered evidence is what its proponent claims it to

be.” (internal quotations marks and footnote omitted)); Tienda v. State, 358 S.W.3d 633,

638 (Tex. Crim. App. 2012) (“The preliminary question for the trial court to decide is

simply whether the proponent of the evidence has supplied facts that are sufficient to

support a reasonable jury determination that the evidence he has proffered is authentic.”).

                                        We Affirm

                                      Sublet v. State

       Sublet, our first Petitioner, argues that “[Ms. Parker’s] testimony sufficiently

authenticated” the four pages allegedly representative of her public Facebook conversation

in which she purportedly expressed acrimony towards Ms. Conner.               Sublet avers,

moreover, that the Facebook posts contained distinctive characteristics from which to

confirm their authenticity. The State asserts, conversely, that, Ms. Parker denied making

the comments on the fourth page of the exhibit and, therefore, those posts were not

authenticated. We agree with the State.

       Ms. Parker denied authoring the public posts on page four of Defense Exhibit A,

after having admitted to writing the earlier communications in the Exhibit. We already

have expressed that when a witness denies having personal knowledge of the creation of

the item to be authenticated, that denial necessarily undercuts the notion of authenticity.

See Makowski v. Mayor & City Council of Baltimore, 439 Md. 169, 197, 94 A.3d 91, 108

(2014) (“[The witness], however, testified that he had never seen the document before nor

recognized it. Accordingly, [the opposing party] failed to authenticate the document.”);

Cf. Maryland Rule 5-901(b)(1). As we have said, Sublet’s counsel, then, was “bound by


                                          38
the answer of the witness”.41 Smith v. State, 273 Md. 152, 157, 328 A.2d 274, 277 (1974).

Sublet’s argument that Ms. Parker’s credibility was for the jury to determine misses the

mark, because her denial of authenticity of the page undermined its admissibility.

       The evidence before the trial judge also lacked “other distinctive characteristics[]

that the offered evidence [was] what it [was] claimed to be.” See Maryland Rule 5-

901(b)(4). Ms. Parker, significantly, testified that she “[gave] her logout name and

password to other people” who would access her “page and [write] stuff on there”.

Testimony that others not only had access to Ms. Parker’s Facebook profile, but would

regularly write posts under her name undermines her authorship. The last page, as well as

the preceding three, were devoid of unique characteristics. It is unclear, facially, that the

entries on page four were part of the conversation initiated on page one. The initial post,

purportedly by “Chanica DatBytch Brown”, was made on “Saturday” at an undisclosed

time. Two responses are received to the Brown post, one by “CanDii SoSeductive P” and

one from “Camerin Kill’Ent Johnson”, before Ms. Parker’s initial response, also on

“Saturday”, at “15:42”. Ms. Parker responded again four and a half hours later at “20:27”

on “Saturday”. The second page, with only one post, was authored by “Zaquane Graham”

on “Yesterday” at “18:42”, and contained no discernable reference to the conversation from

“Saturday”. On the third page, there are no messages from Ms. Parker’s account, “Cece

Parker”; instead, the page contains a conversation among Ms. Brown, “Zaquane Graham”



41
  “The rule preventing impeachment of a witness by extrinsic evidence on a collateral
matter is aimed at preventing inconvenience, loss of time, unfair surprise to the witness
and confusion of the issues”. Smith v. State, 273 Md. 152, 159, 328 A.2d 274, 278 (1974).

                                          39
and “Tonisha Brown” from “Yesterday”. On the fourth page, two posts are attributed to

“Cece Parker” from “Yesterday” that follow an hour after a nonsensical post by Ms. Brown

and make no reference to the circumstances underlying this case. The “Cece Parker” posts

on the fourth page are disconnected entirely from the posts on the first page that Ms. Parker

had claimed ownership of, because it is unclear when “Yesterday” was in relation to

“Saturday”42 and, moreover, the “Cece Parker” posts do not refer to nor answer any of the

previous messages. No showing was made from which a reasonable juror could have found

the pages to be authentic and we, therefore, find no error in the trial judge refusing to admit

Defense Exhibit A in evidence.43

                                       Harris v. State

       In Harris, the Petitioner asserts that there was insufficient evidence presented for

the jury to find that “direct messages” sent through Twitter by the profile “TheyLovingTc”

in response to messages from “OMGitsLOCO” that referenced “aveng[ing] keon”, were

written by him. Harris further urges that Detective Grimes, the State’s forensics expert

who examined the cell phones, could only trace the messages authored by “OMGitsLOCO”

to the iPhone, but that there was no evidence presented with respect to the source of the

entries authored by “TheyLovingTc”. Harris, finally, asserts that the messages did not


42
  The handwritten note across the top of the four pages, “printed on 10∙30∙12 from
Facebook”, was never authenticated.
43
  We would note that the Connecticut intermediate appellate court, in State v. Eleck, 23
A.3d 818, 824 (Conn. App. Ct. 2011), aff’d on other grounds, 100 A.3d 817 (Conn. 2014),
determined that a Facebook message was not properly authenticated when the witness
admitted that the messages in issue were from her Facebook account, but that she had not
authored them and that a “cracker” had accessed her account.

                                           40
contain distinctive characteristics, because a number of individuals were aware of the fight

in which Keon was punched.

       The State asserts, conversely, that there were sufficient distinctive characteristics

from which the trial judge could determine that a reasonable juror could find the “direct

messages” and tweets authentic; to wit, that Jahmil T. had identified “TheyLovingTc” as

Harris’s Twitter name and that the photographs accompanying the TheyLovingTc

messages were of Harris. The State also posits that the content of the messages indicates

that Harris was their author, including that they demonstrated that “OMGitsLOCO and

TheyLovingTc knew about the plan for a shooting.” We agree with the State.

       The substance of the conversation referenced a plan to “avenge keon” that had only

just been created in response to events occurring that same day. That the plan subsequently

came to fruition the following day also indicates that the “direct messages” were written

by someone with knowledge of and involvement in the situation, which involved only a

small pool of individuals, as Jahmil T. stated:

       [STATE’S ATTORNEY]: Okay. Now, after you were at the metro station,
       and you heard Kev -- I’m sorry, you heard Jared say this about robbing
       Kevin, where, if anywhere, did you all go?
       [JAHMIL T.]: We went to Josh’s place?
                                         ***
       [STATE’S ATTORNEY]: And who was at Josh’s place?
       [JAHMIL T.]: Me, [Harris], Kevin, Keon, Josh, Amine, and Foulke.
                                         ***
       [STATE’S ATTORNEY]: Okay. And what, if anything, at Josh’s place, did
       Kevin say?
       [JAHMIL T.]: He said he was going to shoot him.
                                         ***
       [STATE’S ATTORNEY]: Did -- were other people -- what, if anything,
       were other people going to do?



                                          41
       [JAHMIL T.]: They didn’t want to do nothing. They were like, “We’re not
       in this. This is y’all two.”
       [STATE’S ATTORNEY]: And when you say “y’all two,” what two people?
       [JAHMIL T.]: Kevin and [Harris].

In addition, the “direct messages” conversation occurred from 8:53 to 10:16 on the same

evening the plan had been concocted in which one of the participants had used the Twitter

username identified as belonging to Harris. From these facts, the trial judge could have

determined a reasonable juror would have found that the “direct messages” were authentic.

       With respect to the public tweets, our Rule 5-901(b)(3) provides, as an illustrative

means of authentication, that an item may be authenticated through comparison “with

specimens that have been authenticated.” Here, the trial judge had already determined that

the “direct messages” associated with “TheyLovinTc” were authored by Harris and were,

therefore, authentic. The “tweets”, offered in evidence immediately after the trial judge’s

determination that the “direct messages” were authentic, were authored during the

timeframe of the “direct message” conversation, also by “TheyLovinTc”. The first of the

“tweets” was accompanied by a timestamp of “10:14PM, 17 May 12”, two minutes after

the “direct message” from “TheyLovingTc” at 10:12PM. The second “tweet” was authored

at 10:26PM, ten minutes after the last of the “direct messages” from “OMGitsLOCO”.

Based upon the temporal proximity of the “tweets” to the “direct messages” that had

already been authenticated, a reasonable juror could have found that the “tweets” were also




                                          42
authentic and, therefore, the trial judge did not abuse her discretion by receiving the

“tweets” in evidence.44

                                 Monge-Martinez v. State

       Monge-Martinez asserts that the State had failed to establish that the remorseful

Facebook messages Ms. Santa Maria had received while being treated for stab wounds

allegedly inflicted by Monge-Martinez were authored by him. Monge-Martinez argues

that there was no identifying information from the Facebook profile, such as date of birth,

nor was there testimony to connect him to the authorship of the messages and, therefore,

the Facebook messages could not have been authenticated. The State argues that there was

circumstantial evidence connecting Monge-Martinez to the messages, because Ms. Santa

Maria, who dated him for a year, could attest that he wrote the messages and that “the date

and time stamps indicat[ed] they were sent soon after the stabbing, . . . were written in

Spanish and alluded to the stabbing.” We agree with the State.

       With respect to Monge-Martinez’s assertion that the messages could not have been

authenticated as coming from Facebook or from an account he had created, Ms. Santa

Maria testified that the messages were, in fact, “Facebook messages” and that “he was on

[her] account”. The lack of biographical information, such as Monge-Martinez’s date of



44
  Detective Grimes’s testimony served to confirm that the “direct messages” had been sent
and received at the times indicated on the exhibits. The Detective’s testimony, however,
would not have sufficed for the second means of authentication we described in Griffin,
because Detective Grimes’s report was derived from the recipient of Harris’s message, not
from “the [cell phone] of the person who allegedly created the profile and posting”. Griffin,
419 Md. at 363, 19 A.3d at 427.


                                          43
birth, does not, by itself, prevent authentication, because the inquiry is context-specific;

what may be present, yet insufficient, in one case may not be required in another situation.45

       Whether the messages were actually authored by Monge-Martinez could also be

determined by the distinct characteristics of the messages in this context. See Maryland

Rule 5-901(b)(4). The messages were received shortly after the stabbing at a time when

few people were aware of the incident,46 were written in Spanish (Monge-Martinez’s

mother tongue) and expressed remorse for “getting carried away by the anger”. After

receiving the Facebook messages, Monge-Martinez also had contacted Ms. Santa Maria.

According to Ms. Santa Maria, “[Monge-Martinez] started calling [her] on the phone” after

sending the messages and, upon returning home from the hospital on the day of the

stabbing, she discovered a note Monge-Martinez had left in her apartment that was also

written in Spanish. Ms. Santa Maria, finally, described a letter she had received from

Monge-Martinez “in May of 2012” following the April 23rd incident in which he sought

her forgiveness, which was written in Spanish as well. The various communications from

Monge-Martinez, together with the limited number of people knowledgeable of the




45
   As the Second Circuit Court of Appeals in Vayner observed, information about the
purported creator of the account is not indicative that the individual had actually created
the account. Vayner, 769 F.3d at 132 (“It is uncontroverted that information about
Zhyltsou appeared on the VK page . . . [b]ut there was no evidence that Zhyltsou himself
had created the page”.).
46
  According to trial testimony, Monge-Martinez, Ms. Santa Maria, her boyfriend, her two
neighbors and emergency responders were the only people aware of the stabbing.


                                           44
incident as well as the use of Spanish in each message was sufficient evidence upon which

the trial judge could rely to authenticate the Facebook messages.

       Monge-Martinez’s attempt to analogize his case to Smith v. State, 136 So.3d 424

(Miss. 2014), is unavailing. In Smith, “[t]he only information tying the actual messages to

Smith was [the witness’s] testimony that they were Smith’s messages to her.” Id. at 434.

As we have explained, any authenticity determination is context-specific and in the case

sub judice there is far more circumstantial evidence of Monge-Martinez’s authorship than

a bare assertion that he was the author.

                                           Conclusion

       We hold that, in order to authenticate evidence derived from a social networking

website, the trial judge must determine that there is proof from which a reasonable juror

could find that the evidence is what the proponent claims it to be. We hold in Sublet that

the trial court did not err in excluding the admission of the four pages of the Facebook

conversation. We hold in Harris that the trial court did not err in admitting the “direct

messages” and “tweets” in evidence. We also hold in Monge-Martinez that the trial court

did not err in admitting the Facebook messages authored by Monge-Martinez.


                                                        IN   CASE   NUMBER     42,
                                                        JUDGMENT OF THE COURT OF
                                                        SPECIAL APPEALS AFFIRMED.
                                                        COSTS TO BE PAID BY
                                                        PETITIONER.

                                                        IN  CASE   NUMBER    59,
                                                        JUDGMENT OF THE CIRCUIT
                                                        COURT FOR MONTGOMERY



                                             45
     COUNTY AFFIRMED. COSTS
     TO BE PAID BY PETITIONER.

     IN   CASE   NUMBER     60,
     JUDGMENT OF THE COURT OF
     SPECIAL APPEALS AFFIRMED.
     COSTS TO BE PAID BY
     PETITIONER.




46
                                             IN THE COURT OF APPEALS
No. 42 - Circuit Court for Anne Arundel           OF MARYLAND
         County, Maryland
         Criminal No. K-2012-002287
         Argued: February 6, 2015                       No. 42
No. 59 - Circuit Court for Montgomery             September Term, 2014
         County, Maryland
         Criminal No. 121279              Albert Sublet, IV v. State of Maryland
         Argued: February 6, 2015
No. 60 - Circuit Court for Prince
         George’s County, Maryland                      No. 59
         Case No. CT120824X                       September Term, 2014
         Argued: February 6, 2015
                                          Tavares D. Harris v. State of Maryland


                                                        No. 60
                                                  September Term, 2014

                                          Carlos Alberto Monge-Martinez v. State
                                                       of Maryland


                                                      Barbera, C.J.
                                                      Harrell
                                                      Battaglia
                                                      Greene
                                                      Adkins
                                                      McDonald
                                                      Watts,
                                                             JJ.


                                          Concurring and Dissenting Opinion by
                                           Adkins, J., which Barbera, C.J. and
                                                     Harrell, J., join.


                                                  Filed: April 23, 2015
       I join the Majority opinion with respect to Harris v. State and Monge-Martinez v.

State. Respectfully, though, I dissent because I disagree with the Majority’s application of

the “reasonable juror” standard it adopts, when it comes to authentication in Sublet v. State.

       The Majority adopts a standard recently applied in United States v. Vayner, 769 F.3d

125 (2d Cir. 2014)—that the authentication “requirement is satisfied if sufficient proof has

been introduced so that a reasonable juror could find in favor of authenticity or

identification.” Maj. Slip Op. at 32–33 (quoting Vayner, 769 F.3d at 129–30). Under this

standard, preliminary determination about authentication is made by the trial judge as to

whether “‘the proof advanced is sufficient to support a finding that the item in question is

what its proponent claims it to be’ based upon ‘sufficient proof . . . so that a reasonable

juror could find in favor of authenticity or identification.’” Id. at 33 (alteration in Maj.

Op.) (quoting Vayner, 769 F.3d at 130). The Majority recognized that under the Vayner

standard, “the bar for authentication of evidence is not particularly high.”               Id.

(emphasis added) (quoting Vayner, 769 F.3d at 130). Significantly, the Majority adopts

the Vayner rule that “‘proof of authentication may be direct or circumstantial.’” Id.

(quoting Vayner, 769 F.3d at 130).

       In Harris, the Majority allows to stand the admission of direct messages sent

through Twitter from “TheyLovingTc” based on authentication by circumstantial

evidence—that the twitter message “referenced a plan to ‘avenge Keon’ that had only just

been created in response to events occurring that same day” and that the plan “came to

fruition the following day.” Id. at 41. Yet in Sublet, the Majority rejects the combination

of direct and circumstantial evidence as insufficient, concluding that “[n]o showing was
made from which a reasonable juror could have found the pages [of Defense Exhibit A] to

be authentic.” Id. at 40. I disagree and think the Majority fails, in its disposition of the

Sublet case, to adhere to the relatively low threshold for admissibility that it adopts and

applies to authentication issues in Harris. I submit that the circumstantial evidence in

Sublet, although different from that in Harris, was also sufficient to pass the preliminary,

low threshold test necessary to authenticate the Facebook conversation.

       The Majority finds the authenticating evidence offered by the defense in Sublet

insufficient on two principal grounds. First, the Majority holds that because Ms. Parker,

the authenticating witness, denied authoring the Facebook comments on page four of

Defense Exhibit A (the “Exhibit”), that “undermined its admissibility,” id. at 39, even

though Ms. Parker admitted posting comments on page one.

       The Majority relies on Makowski v. Mayor & City Council of Baltimore, 439 Md.

169, 94 A.3d 91 (2014), to justify its inconsistent standard, concluding that “when a witness

denies having personal knowledge of the creation of the item to be authenticated, that

denial necessarily undercuts the notion of authenticity.” Maj. Slip Op. at 38 (“‘[The

witness], however, testified that he had never seen the document before nor recognized it.

Accordingly, [the opposing party] failed to authenticate the document.’” (alterations in

Maj. Op.) (quoting Makowski, 439 Md. at 197, 94 A.3d at 108)).

       Makowski fails to sustain the Majority’s conclusion. Unlike Sublet, at no point did

the Makowski witness who was questioned about the authenticity of the document admit

that he authored it. See 439 Md. at 197, 94 A.3d at 108. In Sublet, before later repudiating

her authorship of the comments on page four, Ms. Parker admitted that she “said those

                                             2
things,” without qualifying her response as referring to only the first three pages of the

Exhibit. Based on this testimony, a reasonable juror could find that all four pages were

authentic. Although Ms. Parker later denied she authored the comments on page four, it is

the province of the jury to resolve conflicting testimony. See Balt. Transit Co. v. State for

Use of Castranda, 194 Md. 421, 433, 71 A.2d 442, 446–47 (1950); Dir. Gen. of Railroads

v. State, 135 Md. 496, 504, 109 A. 321, 324 (1920) (“It was for the jury of course to pass

upon the conflicting testimony . . . .”). Moreover, as explained below, circumstantial

evidence supported the authenticity of page four.

       The Majority rejects this circumstantial evidence as insufficient to meet the standard

of Maryland Rule 5-901(b)(4). Maj. Slip Op. at 39–40. Addressing whether page four

contains “other distinctive characteristics,” the Majority concludes that Ms. Parker’s two

comments on that page “are disconnected entirely from the posts on the first page that Ms.

Parker had claimed ownership of,” and “[i]t is unclear, facially, that the entries on page

four were part of the conversation initiated on page one.” Id. The Majority misses the

mark by ignoring that the contents and substance of the entries on page four relate directly

to the entries on pages one through three.

       Maryland Rule 5-901(b)(4) provides that in addition to “other distinctive

characteristics,” “contents” and “substance” can provide circumstantial evidence sufficient

to support a finding of authenticity. On page one, “Chanica Datbytch Brown” initiated the

conversation by posting an entry referring to the fight that occurred “last[ ]night” and

stating that Ymani Conner, Sublet’s girlfriend, has “more to come.” Ms. Parker then joined

the conversation by commenting, “yea everytime i see that bitch ima fuck that dirty pussy

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bitch up . shout out to cam cam u was riden.” On page three, Ms. Brown continued to

discuss her animosity toward Ms. Conner and Sublet when she posted, “She still tawkn shit

mmmhm but u want to block me u not real ymani Conner u can keep hiding u an ya broke

ass man that jus started working at bed bath an beyond out in the mall we will find yal or

shuld i say u cuz he goin jail . . . .” (Emphasis added.)

       On page four, Ms. Parker made two entries: (1) “ima say this [ain’t] over #fact”;

and (2) “her bf[1] is a dead man walkn.” A reasonable juror could certainly find that in the

first post, the “this” in “this [ain’t] over” refers to the altercation with and animosity toward

Ms. Conner and Sublet that Ms. Parker, Ms. Brown, and others discussed on the previous

three pages. A reasonable juror could also find that “her [boyfriend]” in the second post

refers to Sublet, and that “is a dead man walk[ing]” is another reference to Ms. Parker’s

animosity toward Ms. Conner and Sublet. If we step back and put ourselves in the jury

box, can we say that we would be unreasonable if we concluded that not only did Ms.

Parker author the posts under her profile that appear on page one, but that she continued

the conversation as shown on page four of the print-out? My answer is that it would be

entirely reasonable to draw that conclusion, and moreover, that it would be the unusual

juror who would not draw that conclusion.

       Several other states have already adopted this standard, and a Delaware case is

especially instructive. In Parker v. State, 85 A.3d 682 (Del. 2014), the Delaware Supreme

Court was also tasked with determining whether a reasonable juror could find Facebook


       1
          “Bf” is shorthand for “boyfriend.”                     Urban Dictionary,
http://www.urbandictionary.com/define.php?term=bf (last visited April10, 2015).
                                               4
entries authentic. Id. at 682–83. Following a physical altercation between Tiffany Parker

and Sheniya Brown, the state of Delaware charged Parker with second degree assault. Id.

at 683. To demonstrate Parker’s role in the altercation and discredit her self-defense

argument, the state sought to introduce Facebook entries that Parker allegedly authored

after the altercation. Id. The trial court found that based on circumstantial evidence and

Brown’s testimony, the state sufficiently authenticated the post. Id. at 684.

       Affirming the trial court, the Supreme Court first addressed the circumstantial

evidence proffered by the state, observing that “the substance of the Facebook post

referenced the altercation that occurred between Parker and Brown. Although the post

does not mention Brown by name, it was created on the same day after the altercation and

referenced a fight with another woman.” Id. at 688 (emphasis added). The court then

addressed Brown’s testimony, stating that “Brown testified that she viewed Parker’s post

through a mutual friend. Thereafter, Brown ‘shared’ the post and published it on her own

Facebook page.” Id. Based on the circumstantial evidence and Brown’s testimony, the

court concluded that “[c]ollectively, this evidence was sufficient for the trial court to find

that a reasonable juror could determine that the proffered evidence was authentic.” Id.

       The evidence supporting authentication of the Facebook entries in this case is

stronger than in Parker. Not only do the entries on page four refer to the fight, but also

Ms. Parker’s entries on that page refer to earlier entries in which Ms. Conner is explicitly

mentioned by name. Additionally, Ms. Parker initially testified that she authored all the

entries associated with her profile, and even after renouncing her authorship of the entries



                                              5
on page four, she never denied that she authored the entries on page one. In Parker, the

defendant never admitted authorship of the entries.

       Use of social media as evidence in civil and criminal trials is likely to become

increasingly important. Today we advanced our jurisprudence by adopting the “reasonable

juror” standard and holding that circumstantial evidence can be sufficient to authenticate

social media evidence. But the Majority set bad precedent in holding that a trial judge can

establish such a high bar for authentication as the court did in the Sublet case. The Majority

muddled our “reasonable juror” standard by refusing to accept Facebook posts as

authenticated, based on an undisputed admission by the witness that she made posts

referring to the fight at the party in a Facebook conversation with friends the day after the

party, but denying the posts on the same topic occurring shortly thereafter. We would

enunciate a clearer standard and advance the law more profitably if we affirmed the trial

court rulings in Harris and Monge-Martinez, but reversed the trial court in Sublet.

       Chief Judge Barbera and Judge Harrell authorize me to state that they join in the

views expressed in this opinion.




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