JACKSON, Miss. (AP) - The Mississippi Supreme Court could have added its voice to the national legal debate over law enforcement’s use emails, cellphones, Facebook and other electronic communications in criminal investigations and prosecutions.
It didn’t.
Among the evidence against Scott Druex Smith in a Mississippi capital murder case were messages sent by way of Facebook to his wife. In those messages, according to court documents, Smith complained about problems he was having with his 17-month-old stepdaughter. The messages were allowed into evidence at his trial in the child’s death in Wayne County. He was convicted and sentenced to life without parole.
After his conviction, Smith appealed to the Supreme Court, saying the messages were never authenticated or linked to him. The Supreme Court agreed with Smith on authentication, but said the error was “harmless” because of the overwhelming weight of other evidence against him.
The Supreme Court did cite for prosecutors and defense attorneys a litany of other courts’ decisions that addressed means of authenticating social media evidence. The court said its rules also cover these situations but circumstantial evidence that tends to authenticate an electronic communication is somewhat unique to each medium.
“This is ongoing problem with using Twitter, Instagram and Facebook in these proceedings. I think once more prosecutors get attune to this, they will learn how to use this evidence,” said Matt Steffey, a law professor at the Mississippi College School of Law in Jackson.
The state court described the Facebook issue as one of “first impression” in Mississippi. First impression infers there has been no case like this before in Mississippi state courts. Mississippi has no law that addresses social media evidence and criminal cases.
Elsewhere in the country, courts have thrown out criminal cases where emails, Facebook posts or cellphone records were not authenticated. Courts have urged prosecutors to plan ahead to ensure they have either direct or circumstantial evidence sufficient to authenticate social media communications.
“When law enforcement takes your cellphone or computer, they gather a mountain of information that is unprecedented about your life … there are pictures; there is personal information. A real difficulty in criminal cases is finding someone other than the defendant to authenticate them,” Steffey said.
In Smith’s case, the first two messages were printed from the mother’s Facebook page. The third message was contained in a printed email notification from Facebook.
The Mississippi Court of Appeals said the mother’s testimony that she sent and received the messages was sufficient to authenticate them. The Appeals Court ruled prosecutors had overwhelming evidence presented, without the Facebook messages, to convict Smith.
The Mississippi Supreme Court overturned the Appeals Court on the issue of authentication.
“Sufficient evidence tying both the Facebook profile and the Facebook message to Smith does not exist,” the Supreme Court said.
But the justices agreed the admission of the Facebook messages into evidence was harmless. It upheld Smith’s conviction.
Steffey said courts at the highest level in the country are grappling with use of evidence gleaned from social media in criminal cases.
“Often in a criminal case, if it is the defendant that allegedly posted messages, the court has to look at the circumstantial evidence because you can’t get the defendant to testify. If the defendant testifies, authentication becomes a lesser problem,” Steffey said.
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