The Risks of Taking Facebook at Face Value: Why the Psychology of Social Networking Should Influence the Evidentiary Relevance of Facebook Photographs

The Risks of Taking Facebook at Face Value: Why the Psychology of Social Networking Should Influence the Evidentiary Relevance of Facebook Photographs

Kathryn R. Brown · 14 Vand. J. Ent. & Tech. L. 357

Abstract

Social networking sites in general, and Facebook in particular,  have changed the way individuals communicate and express   themselves. Facebook users share a multitude of personal information   through the website, especially photographs.  Additionally, Facebook   enables individuals to tailor their online profiles to project a desired   persona. However, as social scientists have demonstrated, the image   users portray  can mislead outside observers.  Given the wealth of   information available on Facebook, it is no surprise that attorneys   often peruse the website for evidence to dispute opponents’ claims.

This Note examines the admission and relevance of Facebook   photographs offered to prove a litigant’s state of mind. Part I explores   social science and evolving case law in the social networking arena,   discussing courts’ tendencies to find Facebook photographs   discoverable and admissible in  civil and criminal litigation.  Part II   analyzes courts’ assessments of the relevance of Facebook photographs   as proof of litigants’ remorse or happiness. Part III proposes   mechanisms to aid fact-finders in evaluating Facebook photographs to   better ensure a fair trial. In order to screen out irrelevant photographs   before presentation to a jury, courts ought to be receptive to parties’   requests for  in camera  review of Facebook photographs. As to   photographs admitted into evidence, courts should be open to litigants’   requests for expert and lay testimony on Facebook’s social norms.    Finally, this Note stresses the need for litigants to educate themselves   on Facebook, and advocates further study on the website for purposes of   discerning the precise risks of taking Facebook photographs at face   value.