Social media; Facebook, Instagram, TikTok, Snapchat, Twitter, etc., has changed everything. Like a giant wall of public graffiti, social media has exposed everyone’s inner most thoughts (if they cared to share them) to the world. These thoughts can later be screenshot, printed and presented as evidence in any kind of court case…and they come up in family law cases A LOT.
One can imagine admissions via social media of adultery, relationships, poor parenting and even crimes. But how do you get those incriminating social media posts into evidence in an Illinois family law hearing or trial?
Authenticating Social Media
It is not enough to say, “Your honor, scroll through my phone and you’ll see my wife’s posts.” That’s not how evidence works in a courtroom.
Whenever a document or electronic record is submitted to an Illinois court as proposed evidence, it must be authenticated first.
“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.” Ill. Sup. Ct. R. 901(a)
The point of authentication is to ensure that the exhibit “is what you say it is” but the standard is not really so strong or broad as that. Authentication is rather a “smell test” of genuineness to ensure against fraud or forgery before the court considers the contents of the proposed evidence.
“A finding of authentication is merely a finding that there is sufficient evidence to justify presentation of the offered evidence to the trier of fact and does not preclude the opponent from contesting the genuineness of the writing after the basic authentication requirements are satisfied.” People v. Downin, 828 NE 2d 341 – Ill: Appellate Court, 3rd Dist. 2005
This is the internet we’re talking about! How can we tell if anything is real?
“[C]oncern 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.” People v. Brand, 2020 IL App (1st) 171728 quoting Smith vs. State, 2012-CT-00218-SCT (Miss .2009)
“[More] than a simple name and photograph are required to sufficiently link the communication to the purported author under Rule 901” People v. Kent, 2017 IL App (2d) 140917
So, a screenshot of a post or message on its own will not be enough to get that screenshot admitted into evidence under Illinois law. Something in addition to that is required and Illinois case law gives us legitimate examples that can help authenticate an electronic document or social media post.
“(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.” People v. Kent, 2017 IL App (2d) 140917
So, you can just ask the purported author “did you write this and post this?” If they say, “Yes” then the document can be submitted to evidence.
If the purported author of the post or message denies writing it, you’ve got your work cut out for you. You must find someone who saw them write the post or message or you must show that there is no way anyone else could have written the message via some inside knowledge contained within the message.
Failing that, you’ll have to subpoena the business records of social media app company in order to properly authenticate the message. Don’t hold your breath. These companies did not get so big, so fast by cooperating with legal requests.
Social Media Evidence and Hearsay In An Illinois Divorce
Lots of social media is photos, videos, etc. These photos and videos will be admitted to evidence if they are authenticated and there’s no sound or writing on them. A picture may be worth a thousand words but a picture is not a statement under Illinois Rules of Evidence.
Most social media are written statements or are accompanied by pithy statements like “u mad?”
““Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. Sup. Ct. R. 801(c)
You cannot introduce written statements into evidence without the person who said or wrote the statement testifying that they, indeed, said or wrote that.
“Hearsay is not admissible except as provided by these rules” Ill. Sup. Ct. R. 802
This is a massive stumbling block that, without exceptions (discussed later), keeps all social media evidence out of the courtroom unless you have a cooperative witness.
It may be tempting to have someone testify, “I saw their post and this is what they said in that post.” That is not enough to overcome the bar against hearsay. Testimony that someone else said it is still evidence of “a statement, other than one made by the declarant while testifying as the trial or hearing offered in evidence to prove the truth of the matter asserted.”
So, in the absence of a cooperative witness/social media author, the only way to get social media messages and posts into evidence is through the hearsay exceptions.
Hearsay Exceptions and Social Media
The hearsay rule is so broad it makes social media evidence (without the exceptions) almost impossible to admit unless everyone is present and cooperating…which can be rare in an Illinois divorce.
Below are some exceptions to the hearsay rule that are especially common for social media posts and messages:
“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Ill. Sup. Ct. R. 803(2)
What is an excited utterance? Anything that someone appears to say in haste. That means anything with an exclamation mark, an “OMG,” even an “LOL” or any kind of emotional reaction that comes through in the post. You’ll know it when you see it.
Additionally, I’ll tell you what an excited utterance is not. An excited utterance is not a thoughtful observation. When is the last time you saw one of those on social media?
If the excited utterance hearsay exception will not get a social media post into evidence, then this next exception to the hearsay rule will.
“Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)” Ill. Sup. Ct. R. 803(3)
Is it just me or does this exception describe what every social media post truly is? Isn’t this what all emojis are? A happy face indicates a present emotional condition. A fire indicates a sensation. An eggplant indicates…you get the idea.
If you’re trying to get a social media post or message into evidence, it’s probably because the post or message is embarrassing or materially harms your opponent’s case. These posts will almost always fall under the statement against interest exception to the hearsay rule.
“Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” Ill. Sup. Ct. R. 803(3)
Keep in mind that “criminal liability” covers any admission or use of drugs on social media (why do people advertise their drug use?)
If you can’t get a social media post into evidence under one of these hearsay exceptions…you’re not trying very hard.
A common hearsay error is trying to admit screenshots from a phone or computer and using the testimony of the person who took the screenshot. The person who took the screenshot of someone else’s social media post can testify to taking screenshot to lay a foundation for how they came to be aware of the proposed evidence. But, the person cannot testify to what the other person said “for the truth of the matter asserted.” This is hearsay within hearsay and must rely on the exceptions like any other kind of hearsay.
“Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.” Ill. Sup. Ct. R. 805
Getting Around Authentication and Hearsay of Social Media Posts With A Guardian Ad Litem.
Sifting through someone’s social media history is a chore. Imagine having to authenticate and then offer pictures of peaches and raindrops for the purpose of “establishing a then existing mental, emotional or physical condition.”
In a divorce case, most social media posts are submitted to prove an opposing party’s true character for the purposes of restricting parenting time.
In a case where parenting time is in controversy, a third attorney called a “Guardian Ad Litem” (“GAL” for short) is appointed to represent the best interests of the child. This guardian ad litem will independently investigate any relevant evidence as to the best interests of the children in the case and will report back to the court through a report.
“Guardian ad litem. The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)
The Guardian Ad Litem’s investigation can include reviewing social media posts and messages. Those posts and messages, while hearsay in themselves can be included in the Guardian Ad Litem’s report and be the basis for the Guardian Ad Litem’s conclusions.
“In discharging his or her duty, the GAL will review or consider all kinds of information regarding the child, both admissible and inadmissible at trial. Such information assists the GAL in determining the existence of problems that might cause the child psychological or physical harm. We fail to see any prejudice where the GAL listens to information that may be inadmissible at trial.” In re Marriage of Karonis, 296 Ill. App. 3d 86, 91 (Ill. App. Ct. 1998)
In theory, a hearsay objection could still be made as to social media posts and messages considered by the Guardian Ad Litem in their final report.
Such objections would merely force the Guardian Ad Litem to attempt to get the actual messages into evidence independently instead of just referring to them in the report. If the social media posts or messages are really so damning, would you want this extra focus on them?
Divorce in the 21st century is getting more complicated by the day. If you think social media evidence will have an impact on your Illinois divorce contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Chicago divorce attorney.