Sublet v. State: It is what it is or is it?
One of the more ubiquitous idiomatic phrases used in recent years has been, “It is what it is.” In three consolidated cases decided last month by the Court of Appeals of Maryland, the Court turned that phrase around and focused on the question, “Is it what it is?” – or, more precisely, “Is it what it says it is?” On April 23, 2015, Judge Battaglia issued the Majority’s opinion in Sublet v. State, Sept. Term 2014, No. 42; Harris v. State, Sept. Term 2014, No. 59; and Monge-Martinez v. State, Sept. Term 2014, No. 60.1 The cases concerned the authentication of information derived from social media, required the Court to expand on its four-year-old decision in Griffin v. State, 419 Md. 343 (2011), and inquired whether three trial judges had suitably answered whether the proffered social media “was what it says it was.” As part of that inquiry, the Court of Appeals adopted a standard for trial judges to use in resolving the authentication issue. But, as will be discussed, the standard chosen by the court presents yet another question: what standard of appellate review should be employed in assessing a trial court’s decision on authenticity?
At the core of any authentication question rests Md. Rule 5-901. That rule states “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Applying that rule in the context of social media can be challenging, and in Griffin the court had been charged with this task.
In that case, the prosecution had introduced into evidence pages printed from what purported to be the defendant’s girlfriend’s MySpace profile. Although the account user’s profile page contained a photograph of the defendant and his girlfriend, the girlfriend’s birth date, and a reference to the defendant’s nickname, the majority (in an opinion also written by Judge Battaglia) held that the pages did not contain “sufficient indicia of reliability,” and had not been sufficiently authenticated. Griffin, 419 Md. at 423. The court was concerned about “the possibility or likelihood that” someone other than the girlfriend had either created the social media profile or authored the statement on the profile that had been admitted as evidence at trial. Id.
In Griffin, the court suggested ways to authenticate social media evidence. Now, “[i]n the shadow of” that case, it was ready to take another step in Sublet et al. and “discern a standard for authentication of social networking evidence.” Id. at 30-31.That discernment process led the court to the Second Circuit’s decision in United States v. Vayner, 769 F.3d 125 (2d Cir. 2014). The Court of Appeals summarized the standard established in that case for Fed. R. Evid. 901, which the Second Circuit noted “does not definitively establish the nature or quantum of proof,” needed to provide a preliminary assessment of authenticity:
[T]he 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,” based upon “sufficient proof ... so that a reasonable juror could find in favor of authenticity or identification.”
Slip Op. at 33 (quoting Vayner, 769 F.3d at 129-30 (citations omitted)) (emphasis added). That proof may be direct or circumstantial. Id.
The Vayner court explained that authentication could rely on “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.’” Id. at 34 (quoting Vayner, 769 F.3d a 130-31 (footnote omitted) (other internal quotation marks omitted)). The Court of Appeals embraced the Vayner “reasonable juror” standard, noting that several other federal and state courts also had done so. Slip Op. at 37. For example, the court quoted the Fourth Circuit in United States v. Hassan, 742 F.3d 104, 133 (4th Cir.), cert. denied sub nom., Sherifi v. United States, 134 S. Ct. 2737, and cert. denied, 135 S. Ct. 157, and cert. denied sub nom., Yaghi v. United States, 135 S. Ct. 192 (2014): “Importantly, the burden to authenticate under Rule 901 is not high ... a district court’s role is to serve as a gatekeeper in assessing whether the proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.” Slip Op. at 37 (internal quotation marks omitted).2 In Hassan, the Fourth Circuit also remarked that the proponent of evidence need make “only a prima facie showing” of authenticity. Hassan, 742 F.3d at 133.
Having adopted the Vayner “reasonable juror” standard, the court proceeded to apply that standard to the three cases before it.3 Two of those cases proved noncontroversial, as the court affirmed them unanimously. In Harris, the court held that direct messages sent from one Twitter account to another, along with tweets that originated from one of those accounts, was sufficiently authenticated because the messages contained “sufficient distinctive characteristics from which the trial judge could determine that a reasonable juror could find the ‘direct messages’ and tweets authentic.” Slip Op. at 41.
For example, a witness identified the defendant’s Twitter name and testified that photographs accompanying the messages were of the defendant. Id. In addition, the online conversation referred to a plan for revenge “that had only just been created in response to events occurring that same day.” Id. Moreover, “the plan subsequently came to fruition the following day,” which also evidenced “that the ‘direct messages’ were written by someone with knowledge of and involvement in the situation, which involved only a small pool of individuals.” Id. The online conversation also occurred for a short period “on the same evening the plan had been concocted in which one of the participants had used the Twitter username identified as belonging to” the defendant. Id. at 42. “From these facts, the trial judge could have determined that a reasonable juror would have found that the ‘direct messages’ were authentic.” Id. And once the direct messages were authenticated, they were used to help authenticate the tweets. Id. at 42-43.
In Monge-Martinez, the state introduced “remorseful Facebook messages” received by a stabbing victim and that were allegedly sent by the defendant, who had been charged with the stabbing. Id. at 43. The victim had previously dated the defendant and “could attest that he wrote the messages.” Id. The messages were received shortly after the stabbing, at a time when few people were aware that the stabbing had occurred. Id. at 44. The messages, which expressed the defendant's remorse, were written in Spanish (which was the defendant’s native language) and were followed shortly by phone calls from the defendant. The defendant also left a note, written in Spanish, for the victim, and he sent her a letter, also written in Spanish, seeking forgiveness. Id. “The various communications from Monge-Martinez, along with the limited number of people knowledgeable about the incident and the use of Spanish in each message was sufficient evidence upon which the trial judge could rely on to authenticate the Facebook messages.” Id. at 44-45.
On the other hand, the Sublet case stirred controversy. Sublet was charged with various crimes arising from "a fight that occurred among Sublet, Chrishell Parker, her mother and her sister." Id. at 3. According to the state, Sublet started the fight "when he arrived at Ms. Parker's apartment to pick up his girlfriend, Ymani Cooper." Id. However, he claimed Ms. Parker "was the instigator." Id.
During Ms. Parker's cross-examination, Sublet's lawyer tried "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." Id. Defense counsel showed Ms. Parker the document, "asked her to 'look this over' and then asked her if she had 'said those things' attributed to her, to which she agreed." Id. at 7 (emphasis added). As the defense counsel began to ask more detailed questions about the specific entries, Ms. Parker began to backtrack.
She "asserted she did not write the entries on the last page, and she did not understand where they came from." Id. at 8.4 She further "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." Id. at 8. As a result, the trial judge sustained the prosecution's objection to the admission of the exhibit "based on 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." Id.
In affirming the trial court, the majority said "Ms. Parker denied authoring the public posts on page 4 of Defense Exhibit A, after having admitted to writing the earlier communications in the Exhibit." Id. at 38. The court explained "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." Id. (citing Makowski v. Mayor & City Council of Balt., 439 Md. 169, 197 (2014)). As there were no other "distinctive characteristics" that could help authenticate the exhibit, and as Ms. Parker had testified "that others not only had access to [her] Facebook profile, but would regularly write posts under her name," the majority concluded that "[n]o showing was made from which a reasonable juror could have found the pages to be authentic." Thus, it found "no error in the trial judge refusing to admit Defense Exhibit A in evidence." Id. at 39, 40 (footnote omitted).
Judge Adkins wrote a concurring and dissenting opinion that was joined by Chief Judge Barbera and Judge Harrell. While they joined the majority with respect to Harris and Monge-Martinez, they dissented and disagreed "with the Majority's application of the 'reasonable juror' standard it adopts, when it comes to authentication in Sublet v. State." Dissenting Op. at 1. The dissent noted "the Majority adopts the Vayner rule that 'proof of authentication may be direct or circumstantial.'" Id. The dissent also pointed to the majority's adoption of language from Vayner that "the bar for authentication of evidence is not high." Id. (quoting the Majority Slip Op. at 33, quoting Vayner, 769 F.3d at 130) (emphasis added by the dissent) (internal quotation marks omitted). Given that standard, the dissent thought the majority failed "in its disposition of the Sublet case, to adhere to the relatively low threshold for admissibility that it adopts and applies to authentication in Harris." Id. at 2.
The dissent thought that the entries attributed to Ms. Parker bore sufficient distinctive characteristics to justify admitting the evidence. Id. at 3-5. However, the majority’s and dissent’s different perspectives on Ms. Parker’s testimony are of particular interest. The majority focused on the witness’ specific denial, which she gave later in her cross-examination, that she authored specific entries in the exhibit. But the dissent pointed to the witness’ earlier admission that she wrote the entire exhibit.
In Sublet, before later repudiating her authorship of the comments on page four, Ms. Parker admitted that she “said those 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.
Id. at 2-3 (emphasis added) (citing Balt. Transit Co. v. State for Use of Castranda, 194 Md. 421, 433 (1950); Dir. Gen. of R.Rs. v. State, 135 Md. 496, 504 (1920)). Thus, in the view of the three dissenting judges, the trial court erred in excluding the evidence, and Sublet should have received a new trial.
The dissent’s citation to Castranda and Director General of Railroads – cases that dealt with the sufficiency of evidence at trial – is telling. The “reasonable juror” standard, adopted to determine whether evidence has been sufficiently authenticated to allow it to be given to the jury, is nearly identical to the standard used in determining whether sufficient evidence has been introduced to establish a prima facie case and avert a motion for judgment or motion for judgment notwithstanding the verdict. “In reviewing the denial of a motion for judgment notwithstanding the verdict, ‘an appellate court considers whether there is ‘any evidence adduced, however slight . . . from which reasonable jurors, applying the appropriate standard of proof, could find in favor of the plaintiff on the claims presented.’’” Bradford v. Jai Medical Sys. Managed Care Org., Inc., 439 Md. 2, 15 (2014) (emphasis added) (quoting Exxon Mobil Corp. v. Albright, 433 Md. 303, 333 (2013) (citations omitted)). Motions for judgment are evaluated under that same standard. Hoffman v. Stamper, 385 Md. 1, 16 (2005).
In my view, this raises a question regarding the appropriate standard of appellate review. If a trial court is to make an authentication determination based on what is essentially a motion-for-judgment standard, should an appellate court review that determination in the same way it reviews a ruling on a motion for judgment? A ruling on a motion for judgment – which determines whether sufficient evidence has been produced so that a reasonable juror could find that a claim has been established – is treated as a legal issue that is reviewed de novo. Ayala v. Lee, 215 Md. App. 457, 467 (2013).
So, should a ruling on the authentication of evidence – which determines whether sufficient evidence has been produced so that a reasonable juror could find that the document is authentic – likewise be treated as a legal issue that is reviewed de novo? Generally, evidentiary rulings are reviewed for abuse of discretion but, where an evidentiary ruling involves a question of law, an appellate court reviews the ruling de novo. Hall v. Univ. of Md. Med. Sys. Corp., 398 Md. 67, 82-83 (2007). Is the authentication issue an instance where a trial court’s decision will be reviewed under a heightened standard of review? If the trial judge’s role is to determine whether sufficient proof exists, that would permit the jury to find the evidence to be authentic, appellate courts should give that determination less deference than a purely discretionary decision typically receives.
1 The consolidated cases will be referred to collectively as Sublet et al. Where, however, the discussion concerns a specific case, the case will be referred to by using the individual defendant’s name, i.e., Sublet, Harris, or Monge-Martinez.
2 Md. Rule 5-901 is patterned after Fed. R. Evid. 901.
3 Although the Court of Appeals was considering what standard to employ “for authentication of social networking evidence,” Slip Op. at 31, the “reasonable juror” standard should be used in evaluating any evidence for which an authenticity challenge is made. The Court’s adoption of the “reasonable juror” standard began with an examination of Rule 5-901, which governs the authentication of all evidence. And that standard had been used in the Second Circuit well before the court in Vayner used it in the context of social media. For example, one of the cases cited and relied on by the Second Circuit in Vayner was United States v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999), which dealt with the authentication of Polish passports. Furthermore, at least one trial court in that circuit has cited Vayner in resolving a challenge to the authenticity of non-social-media evidence. Leo v. Long Island R.R. Co., No. 13cv7191 (MHD), 2015WL 1958906 (Apr. 30, 2015) (surveillance videotape).
4 This questioning appears to have taken place outside the presence of the jury. Slip Op. at 7-8.
Brad McCullough is a commercial and business litigator and appellate attorney at Lerch, Early & Brewer in Bethesda, Maryland. Brad represents businesses and individuals in a wide variety of cases in federal and state trial and appellate courts, as well as before arbitration panels and in mediation proceedings.
This article originally appeared on The Maryland Appellate Blog.