STATE OF LOUISIANA v. YANCEY SHANE HENDERSON (2022)

I concur in the denial of this writ application and write separately to bring attention to a seemingly underappreciated issue made more common by the ever steady encroachment of technology in our daily social interactions. The laying of a foundation for the admissibility of evidence before a trial court is of primal importance, yet it has become routine that such elementary applications of procedural law are often disregarded in the introduction of social media evidence. Therefore I offer as a reminder that “[s]tated perspicuously, the Internet is not self-proving.” Wood v. Hackler, 52,791, p. 8 (La. App. 2 Cir. 8/14/19), 276 So. 3d 1136, 1141, writ denied, 2019-01469 (La. 12/10/19), 285 So. 3d 490.

There is a lack of in-depth legislative and jurisprudential analysis of this issue. As observed by the Fourth Circuit, “[a]uthentication of electronic messaging ․ is an issue [with] which Louisiana courts have dispensed limited guidance, particularly as it relates to social media.” State v. Smith, 2015-1359, p. 7 (La. App. 4 Cir. 4/20/16), 192 So. 3d 836, 840. Furthermore, the lack of judicial guidance on this issue has created seemingly inconsistent applications of the requirements to authenticate social media evidence.

In State v. Smith, for example, the Fourth Circuit considered whether “social media posts,” including an image purporting to show the defendant holding a gun and making comments, and screenshots of text messages he allegedly sent to the victim, were properly authenticated. The state sought to introduce that evidence solely through a police officer who testified that the victim had shown her the text messages and image on his cell phone. Finding that the defendant “would be able to adequately deal with [the authenticity of the digital evidence] on cross-examination,” the trial court denied his motion to exclude. Smith, 2015-1359, p. 5, 192 So. 3d at 840.

On appeal, the Fourth Circuit vacated the trial court's ruling and remanded for the state to properly authenticate the evidence. The court noted that “[s]ufficient proof will vary from case to case” and “[c]onsequently, the type and quantum of evidence will depend on the context and the purpose of its introduction. Evidence which is deemed sufficient to support a reasonable juror's finding that the proposed evidence is what it is purports to be in one case, may be insufficient in another.” Id., 2015-1359, p. 10, 192 So. 3d at 842.

A year later, the same appellate court reached a different conclusion, declining to follow State v. Smith. In State v. Gray, the court of appeal found YouTube videos depicting the defendant and his gang affiliation to be admissible. It rejected the defendant's argument “that there was no authentication evidence as to when the three YouTube videos were recorded and posted or who posted the videos.” State v. Gray, 2016-1195, p. 30 (La. App. 4 Cir. 6/28/17), --- So. 3d ----, 2017 WL 3426021 at *16, writ denied, 2017-1306 (La. 6/15/18), 257 So. 3d 688. These issues, the court found, address “the reliability and the weight of the video evidence, not the authenticity.” Id. The Court further observed that “the testimony of a witness with personal knowledge may provide the authentication of evidence necessary for its admission.” Id. In its evaluation of the issue, the Gray Court resorted to reviewing decisions of other jurisdictions, including California and Mississippi.

It may very well be that simply looking to Louisiana Code of Evidence Article 901 A, which provides that “[t]he 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” may not be enough to resolve this issue. Today's technology has changed the very fabric of human interaction, and it may be doing the same for evidentiary issues in current court cases. The confusion and lack of authority as to the authentication and the admissibility of social media in court cases likely needs the legislature's attention sooner rather than later.

MCCALLUM, J., concurs and assigns reasons.