People v. Kent, 2017 IL App (2d) 140917 (June). Episode 373 (Duration 10:29)

Admitting this Facebook post leads to murder conviction reversal.

Facts

The victim was shot in his driveway.

He was the ex boyfriend and babydaddy of defendant’s current girlfriend.

Altercation

The day before the shooting defendant and victim had engaged in a fist fight. DCFS removed defendant’s girlfriend’s children from the home after they investigated after the fight and found bullets in the home.

Two young juvenile delinquents testified that defendant committed the shooting, and that he elicited their help. He wanted them to call defendant or to get him to a park somehow.

When that didn’t work, defendant just went to his house.

Facebook

Police took a picture of a Facebook post under the profile “Lorenzo Luckii Santos”.

The day after the murder, a detective took a screenshot of the post, which showed a photograph of someone allegedly resembling defendant and an undated post that read,

“its my way or the highway…..leave em dead n his driveway.”

Foundation

Illinois rules of evidence require that proper foundation be laid for certain evidence. At the hearing on the motions, the parties disputed whether the State could lay an adequate foundation.

The State represented that it would introduce evidence at trial that

(1) Santos was the last name of defendant’s mother,
(2) Donmarquis was killed in his driveway,
(3) the photograph resembled defendant, and
(4) “Facebook records will have an IP [internet protocol] address that belongs to defendant’s girlfriend.”

The court granted the State’s motion, ruling that the Facebook post was admissible “subject to foundational requirements” being met at trial.

Facebook Trial Evidence

Detective testified that he had been using Facebook for approximately one year.

He explained that a Facebook profile is “a visual display of personal information usually specific to a user” and that a post is a message created by a user that can be shared with a select group of people or with the general public. Anyone could set up a profile, using an e-mail address. Detective had created a profile under the name “Daquan Rogers,” which was used for investigations.

The profile contained a picture of someone other than the detective.

Detective Beets searched Facebook and found a profile under the name “Lorenzo Luckii Santos.”

A photo on that profile resembled defendant.

On the Santos profile, Detective saw a post that said,

“its my way or the highway..…leave em dead n his driveway.”

Detective testified that the profile name “Lorenzo Luckii Santos” was “associated” with this post, and he printed a screenshot of the post. The detective offered no testimony about when the post was created, but he testified that it was deleted later that day.

Following Detective testimony, the defense renewed its objection to the Facebook evidence, arguing that there had been insufficient authentication. Despite its pretrial assurances, the State had failed to link the name “Santos” to defendant or to present Facebook records to establish that the post originated from defendant’s girlfriend’s IP address.

The court overruled the objection, finding that the post was sufficiently authenticated with the name, defendant’s photo, and the statement about the shooting.

Authentication of Documents

Authentication of a document may be made by direct or circumstantial evidence, which is routinely the testimony of a witness who has sufficient personal knowledge to satisfy the trial court that the item is, in fact, what its proponent claims it to be.

The Rule

Illinois Rule of Evidence 901 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.”

The parties have not cited, and our research has not uncovered, any Illinois case addressing the admissibility of a Facebook post allegedly attributable to a criminal defendant. While lower federal court decisions are not binding upon state courts, we may look to them as persuasive authority.

Federal Case

Having looked to such decisions, we conclude that United States v. Vayner, 769 F.3d 125 (2d Cir. 2014), best represents a line of cases that is on point and persuasive.

In that case a Russian social media print out was admitted.

The Second Circuit observed that the requirement is satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification; the ultimate determination as to whether the evidence is, in fact, what its proponent claims is thereafter a matter for the jury.

Sufficient Proof

The Second Circuit declared that “[t]he bar for authentication of evidence is not particularly high” and “the proponent need not rule out all possibilities inconsistent with authenticity, or *** prove beyond any doubt that the evidence is what it purports to be.”

However, there must be at least sufficient proof for a reasonable juror to find in favor of authenticity.

The proof of authentication may be direct or circumstantial, but the simplest and likely most common form is through the testimony of a witness with knowledge that a matter is what it is claimed to be.

For example, some documents can be authenticated by distinctive characteristics of the document itself, such as its appearance, contents, substance, or internal patterns, taken in conjunction with the circumstances.

The Second Circuit concluded that the district court abused its discretion in admitting the web page without proper authentication under Rule 901 of the Federal Rules of Evidence.

The court observed that “[t]he VK profile page was helpful to the government’s case only if it belonged to [the defendant]—if it was his profile page, created by him or someone acting on his behalf—and thus tended to establish that [the defendant] used the moniker ‘Azmadeuz’ on Skype and was likely also to have used it for the Gmail address from which the forged birth certificate was sent, just as Timku claimed.”

Although it was “uncontroverted that information about [the defendant] appeared on the VK page: his name, photograph, and some details about his life that were consistent with Timku’s testimony about him[,] there was no evidence that the defendant himself had created the page or was responsible for its contents.”

The Second Circuit hypothesized that, if the government sought to introduce a flyer found on the street that contained the defendant’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 [the defendant].

Otherwise, how could the statements in the flyer be attributed to him?”

The Second Circuit rejected the notion that the mere fact that a web page with the defendant’s name and photograph happened to exist on the Internet at the time of the special agent’s testimony permitted a reasonable conclusion that the page was created by the defendant or on his behalf.

Analysis

The parties agree that, despite its digital nature, the Facebook post qualifies as a document for admissibility purposes.

A party must lay a proper foundation before a document may be entered into evidence.

Detective Beets admitted that anyone can set up a profile using an email address, as illustrated by his creation and use of a fake profile for investigation purposes. The profile had a name and a photograph that were not his.

Despite claiming that Facebook records would show that the Facebook profile was associated with an IP address belonging to Kimiko, the State presented no evidence of circumstances surrounding the post’s creation to show that defendant was responsible for its contents.

Connection More Tenuous

The connection between the Facebook post and defendant in this case is even more tenuous than the connection between the VK web page and the defendant in Vayner.

The Facebook post was helpful to the State’s case only if it belonged to defendant.

If he or someone acting on his behalf created it, the State could argue that the statement “its my way or the highway…..leave em dead n his driveway” was a boastful admission by defendant that he murdered Donmarquis in the driveway of 1428 Nelson Boulevard.

However, the State offered neither direct nor circumstantial proof of authentication.

No Proof It Was His Post

Defendant did not admit to creating a Facebook profile or making the post, and he was not seen composing the communication.

At the pretrial hearing, the State represented that “Facebook records will have an IP address that belongs to Kimiko.” From that evidence, the State might have argued that defendant, Kimiko, or someone else acting on defendant’s behalf created the post from her IP address.

However, the State presented no Facebook records at trial and even failed to establish that “Santos” was the last name of defendant’s mother.

Other than Detective Beets’s discovery of the post on the day after the offense, no circumstances surrounding the creation of the undated post were introduced at trial.

Social Media Foundation

The authentication of social media poses unique issues regarding what is required to make a prima facie showing that the matter is what the proponent claims.

Creating a Facebook account is easy.

That’s precisely the problem. Anyone at least thirteen years old with a valid e-mail address could create a profile. Not only can anyone create a profile and masquerade as another person, but such a risk is amplified when a person creates a real profile without the realization that third parties can ‘mine’ their personal data.

Friends and strangers alike may have access to family photos, intimate details about one’s likes and dislikes, hobbies, employer details, and other personal information, and, consequently, the desire to share information with one’s friends may also expose users to unknown third parties who may misuse their information.

Thus, concern over authentication arises 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, and, consequently, the potential for fabricating or tampering with electronically stored information on a social networking website is high and poses challenges to authenticating printouts from the website.

In This Case…

In this case, there was affirmative evidence that no identity verification is required to create a Facebook profile.

In fact, Detective Beets confirmed how easily he created a fake profile for investigation purposes, complete with a name and a photograph that were not his.

Here, the State offered no evidence that defendant ever accessed Facebook or even used the Internet.

At best, the photograph and the name on the Facebook profile are about defendant and not evidence that defendant himself had created the post or was responsible for its contents.

There was nothing obscure about this information.

There was ample testimony that the police activity drew the neighborhood’s attention to the shooting, such that the information was not known by only defendant or a small group of people including defendant.

Any person could have created the post if he or she knew defendant by his alleged alias, knew about the shooting and the underlying feud, and had digitally mined an image of someone who looked like defendant.

Just Like A Random Flyer

The Facebook post in this case is no different from the hypothetical flyer in Vayner.

If a printout of the screenshot of the Facebook post had been found on the street, the trial court surely would have required some evidence that it was written or authorized by defendant. Otherwise, the statement on the printout could not be attributed to him.

Examples Of Ways To
Authenticate Social Media

The mere fact that a Facebook post on a profile with defendant’s alleged alias and photograph happened to exist on the Internet for a brief period after the offense does not permit a reasonable conclusion that the post was created by defendant or on his behalf.

The ease in fabricating a social media account to corroborate a story means that more than a “simple name and photograph” are required to sufficiently link the communication to the purported author under Rule 901.

For example,

(1) the purported sender admits authorship,
(2) the purported sender is seen composing the communication,
(3) business records of an Internet service provider or cell phone company show that the communication originated from the purported sender’s personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have had access to the computer or cell phone,
(4) the communication contains information that only the purported sender could be expected to know,
(5) the purported sender responds to an exchange in such a way as to indicate circumstantially that he was in fact the author of the communication, or
(6) other circumstances peculiar to the particular case may suffice to establish a prima facie showing of authenticity.

Holding

“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.”

However, to argue that the Facebook post was tantamount to an admission that defendant killed the victim in his driveway, Rule 901 required “some basis” on which a reasonable juror could conclude that the post was not just any Internet post, but was in fact created by defendant or at his direction.

Without such a showing, the trial court abused its discretion in admitting the Facebook post and Detective Beets’s testimony. This “admission” played big in the State’s opening and closing statement.

This error compels reversal of the conviction.