The New Mexico Supreme Court has issued an opinion holding that social media evidence is subject to the traditional authentication standard laid out at NMRA 11-901, rather than a “heightened standard” designed to detect fraud or impersonation.  

The Court characterized this core issue from State v. Jesenya O. as a matter of first impression, but its analysis was straightforward – resting primarily on the premise that “authentication challenges arising from the use of social media evidence in litigation are not so different in kind or severity from the challenges courts routinely face in authenticating conventional writings.” The Court brushed aside a Maryland social media case (Griffin v. State) that embraced a heightened standard, finding more persuasive a line of cases rooted in the practical observation that “the vulnerability of the written word to fraud did not begin with the arrival of the internet.”

Beyond this practical observation, in a succinct analysis of underlying policy considerations, the Court noted that “the application of more demanding authentication requirements in the social media realm… would too often keep from the fact-finder reliable evidence based on an artificially narrow subset of authentication facts.” The Court deemed this approach inadvisable, and the opinion tends to reinforce the longstanding impression that the New Mexico judiciary is not interested in metaphysical certainty when it comes to matters of authentication – only in the pragmatic assessment, by a preponderance of the evidence, that a particular item “[is] what it purports to be.”

Personal electronic devices, like your smartphone, create and store enormous amounts of evidence about you on a daily basis–what you search for, where you go, who you interact with, and what you purchase–and now, more than ever, that data is becoming increasingly present in the court room.  In this day and age, a thorough understanding of the evidentiary developments impacting personal tech data and its admissibility in court is crucial to an effective litigation strategy.  Cases like Jesenya O., though seemingly narrow in scope, should not be overlooked or under-analyzed.