A Law Student’s Experience: Do Courts “Like” Social Media Evidence?

The below post comes from Temple Beasley School of Law student Veronica Schad, currently a 2L.  It is an anecdotal but useful ‘survey’ regarding the prevalence of social media evidence in Family Court proceedings and the judicial response to the same.

During my summer legal internship, I found myself in Family Court at 15th and Arch observing a hearing for Expedited Relief for a custody matter.  The Defendant Mother was not present in the court room, as she and the children in question were in Chicago for the school year.  As per normal procedure, the Judge called the Mother on the court’s phone and put her on speaker.

Before the trial could fully get underway, the judge went through some routine questions- established that Mother was who she said she was, that she knew why there was a hearing today, and then asked “And you received service, yes?” The mother replied, “Oh, no I didn’t get a letter.”  The Judge paused and then asked how the mother knew that the hearing was happening today.  The response was “Oh, he posted it all over my Facebook page.  So I knew I had court today and that the phone call would be coming.”

The Judge paused again and looked incredulously at the Father.  He shrugged and explained that Mother had not been taking his phone calls and he didn’t know her address in Chicago (one of the matters of dispute before the court).  The Judge considered this for a few moments, then pronounced, “Well, this is not typically how service works.  However, since Mother is here and everyone else is here and ready to proceed, we are going to go ahead with the hearing.”

And so the hearing went forward with me (and likely the Judge) pondering the same question- in today’s technologically infused world, how important is social media evidence?

Courts have been admitting this type of evidence for at least a decade as long as it satisfies the appropriate rules of evidence.  With Facebook, a recurring issue that appears is authenticity, which usually requires additional evidence beyond a name to prove who authored the original posts.  US v. Browne 834 F.3d 403, 410 (3rd Cir. 2016).   This is because there is some risk that social media accounts may be falsified or accessed by an imposter with relative ease.  Id at 412.  That being said, social media evidence does come in- and comes in for most types of litigation, from personal injury to trademark infringement.  Romano v. Steelcase, Inc. 907 N.Y.S.2d 650 (N.Y. Supp. 2010); Ingrid & Isabel, LLC v. Baby Be Mine, LLC 70 F.Supp.3d 1105 (C.A. 2014).

If social media evidence is admitted as long as it is relevant and properly authenticated, the question then becomes:  How often does it actually come in?  While there are no current statistics on this topic, I decided to once again journey to Family Court and conduct a ‘flash study’ of social media evidence.  For my study I sat in on Protection From Abuse (“PFA”) hearings in the Honorable Christopher Mallios’ courtroom.

For some background information, to obtain a PFA in Philadelphia a party files a PFA Petition on the 8th Floor of the Family Court building.  That same day the party is seen by a judge for an ex parte hearing, which usually lasts anywhere from 2-5 minutes.  Within 10 days, the party and the respondent party return for a full PFA trial.  While it is extremely uncommon to have lawyers at the ex parte phase, more parties will have lawyers by the time the PFA petition goes to trial.

That day I heard 6 hearings for PFA petitions for a final order of protection.  Of those 6, there were 2 agreements and 4 went ahead to trial.  Of the 4 trials I heard, 3 of the trials admitted some sort of social media evidence.  There were Facebook and Instagram posts, and each time the evidence was admitted even though the authenticity of the post was disputed by the other party (“I didn’t post that”, etc.).

I also observed 10 ex parte hearings for Protection From Abuse petitions.  These were all conducted quickly and very little evidence was presented.  Still, 2 of those cases presented social media evidence (on the party’s phone) to give some credence to their claims.  While this evidence was not formally admitted, it was viewed by Mallios.  It is unclear how many of the 10 cases would end up with social media evidence at the final trial.

While this was admittedly a ‘flash study’, the results are indicative of just how important and pervasive social media evidence is in the courtroom, especially at a level of litigation where most parties are representing themselves pro se.  With 75% of PFA ‘trials’ and 20% of ex parte hearings involving social media evidence, the importance and reliance that most parties have on this type of evidence seems… well, evident.   Since courts appear to “like” social media evidence well enough, perhaps lawyers should ask to see their clients’ phones more often.