State v. Jesenya O. ( 2022 )

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number: _________________
3 Filing Date: June 16, 2022
4 NO. S-1-SC-38769
5 STATE OF NEW MEXICO,
6 Plaintiff-Petitioner,
7 v.
8 JESENYA O.,
9 Child-Respondent.
10 ORIGINAL PROCEEDING ON CERTIORARI
11 Donna J. Mowrer, District Judge
12 Hector H. Balderas, Attorney General
13 Benjamin L. Lammons, Assistant Attorney General
14 Santa Fe, NM
15 for Petitioner
16 Liane E. Kerr, LLC
17 Liane E. Kerr
18 Albuquerque, NM
19 for Respondent
1 OPINION
2 ZAMORA, Justice.
3 {1} This appeal calls upon us to consider issues relating to the authentication of
4 social media evidence. Specifically, we are asked to review a determination by the
5 Court of Appeals that the district court abused its discretion in authenticating
6 screenshots of Facebook Messenger messages allegedly initiated by Jesenya O.
7 (Child) in the near aftermath of the events giving rise to the underlying delinquency
8 proceeding. State v. Jesenya O., 2021-NMCA-030, ¶ 29, 493 P.3d 418. As part of
9 this inquiry, we consider as a matter of first impression whether admissibility of such
10 evidence should be governed by the traditional authentication standard set out in
11 Rule 11-901 NMRA or by a heightened standard that seeks to account for the
12 possibility that communications issued on social media platforms may be especially
13 susceptible to fraud or impersonation.
14 {2} We agree with the Court of Appeals that the traditional authentication
15 standard set out in Rule 11-901 provides the appropriate legal framework for
16 authenticating social media evidence. Jesenya O., 2021-NMCA-030, ¶ 21. But we
17 disagree with the conclusion reached by the Court of Appeals that the State failed to
18 meet the threshold for authentication established under that rule, much less that the
19 district court abused its discretion in finding the State had met its burden. Id. ¶ 29.
1 We hold the State’s authentication showing was sufficient under Rule 11-901 to
2 support a finding that, more likely than not, the Facebook Messenger account used
3 to send the messages belonged to Child and that Child was the author of the
4 messages. Accordingly, we reverse the Court of Appeals and reinstate Child’s
5 delinquency adjudications.
6 I. FACTUAL AND PROCEDURAL BACKGROUND
7 {3} Child, then age seventeen, became Facebook friends with a former
8 schoolmate, Jeremiah Erickson (Erickson), then age nineteen. Over the next several
9 weeks, the two conversed primarily, if not exclusively, through their respective
10 Facebook 1 Messenger accounts. Facebook Messenger is an instant messaging
11 service which allows users to communicate with one another from within Facebook
12 or via a stand-alone application. See Messenger From Meta,
13 https://about.facebook.com/technologies/messenger/ (last visited June 1, 2022).
14 Facebook users may access the application from a variety of devices, including
15 desktop computers, mobile phones, and tablets. Id. On two occasions, Child and
1
Facebook changed its company brand to “Meta” in 2021. See Introducing
Meta: A Social Technology Company, https://about.fb.com/news/2021/10/facebook-
company-is-now-meta/ (last visited June 1, 2022). Throughout this opinion, we refer
to the company name in use when the messages at issue were allegedly sent, i.e.,
Facebook.
2
1 Erickson used Facebook Messenger to arrange in-person meetings, during which
2 Erickson drove to Child’s house to pick her up and drive her somewhere to “hang
3 out.”
4 {4} It was the second of these meetings that gave rise to the events leading to
5 Child’s adjudication. Both Erickson and Child testified to the jury that their get-
6 together on the night of February 24, 2020, did not end well, although each provided
7 a different narrative as to what unfolded. According to Erickson, Child had acted
8 “weird” at the get-together and appeared to be high or drunk. He testified that, while
9 he was driving Child home, she asked him to park his vehicle near a home located
10 on an alley behind a furniture store, which he did, leaving the engine running and
11 the driver’s side door open. According to Erickson, after the two exited the car to
12 say good night, Child pushed him out of the way, assumed control of the vehicle,
13 and drove off by herself, crashing through a chain-link fence, striking a dumpster,
14 and driving the car out of Erickson’s sight.
15 {5} Child’s testimony painted a different picture. According to Child, Erickson
16 was drunk and driving recklessly on the way to her home. She testified that he made
17 advances toward her and that he stopped the car in the alley after she rejected them.
18 According to Child, both parties exited the vehicle, Child asked if she could drive
19 the vehicle, Erickson refused, and Child then told Erickson she would not get back
3
1 in the car with him. Child began to walk down the alley with Erickson following her.
2 Child testified she ran away from Erickson in fear and walked the rest of the way
3 home alone. On cross-examination, Child claimed she did not have her phone with
4 her after leaving Erickson’s vehicle.
5 {6} At Child’s adjudication, the State sought to introduce evidence of
6 communications between Child and Erickson the State alleged took place on
7 Facebook Messenger the day after the incident involving Erickson’s vehicle. The
8 evidence was proffered in the form of two screenshots (hereinafter “the February 25
9 messages”) showing communications between a user identified as Erickson and a
10 user identified by name and photograph as Child. The messages reflected the
11 following exchange:
12 [Child]: Your car!!
13 [Child]: I was drunk as fuck
14 [Child]: I’m so sorry.
15 [Child]: Did u call the cops on me
16 [Erickson]: Had to.
17 [Child]: And u gave them my name?
18 [Erickson]: Had to. What you did was beyond fucked up.
19 [Erickson]: And now I’m in deep shit for it.
4
1 [Child]: I’m IN DEEP SHIT
2 [Child]: I was completely drunk I don’t know what I was doing
3 [Erickson]: Well we’re both fucked.
4 [Child]: Yeah no kidding.
5 [Child]: I’m going to jail
6 [Erickson]: I can’t believe you took my car to Clovis and totaled it.
7 [Child]: I was drunk.
8 {7} The State sought to authenticate the February 25 messages through Erickson’s
9 testimony as to his personal knowledge of both the accuracy of the screenshots and
10 his history of Facebook Messenger communications with Child, as well as through
11 the contents of the messages themselves. Child’s trial counsel objected to the
12 authentication of the exhibits, arguing the screenshots did not show with certainty
13 that the messages were sent from Child’s Facebook account and emphasizing what
14 counsel characterized as the inherent difficulty in “lay[ing a] foundation on
15 Facebook Messenger messages because anybody can have access to somebody’s
16 phone or Facebook account.” The district court overruled the objection, and the
17 evidence was admitted. Child was subsequently adjudicated delinquent and appealed
18 the district court’s judgment and disposition to the Court of Appeals.
5
1 {8} On appeal, Child challenged the foundation laid by the State for the
2 screenshots of the February 25 messages. The Court of Appeals reversed based
3 solely on the authentication issue. Jesenya O., 2021-NMCA-030, ¶¶ 29, 36. It
4 concluded that, while communications arising on social media platforms are subject
5 to the same authentication requirements as other evidence subject to Rule 11-901,
6 the State had failed in its burden to properly authenticate the messages. Jesenya O.,
7 2021-NMCA-030, ¶¶ 24-29. In so holding, the Court of Appeals focused in part on
8 the fact that the content of the messages was not “sufficiently confidential to
9 establish that only Child could have authored the messages.” Id. ¶ 28 (emphasis
10 added). The Court concluded the error in admitting the messages for the jury’s
11 consideration was not harmless, vacated Child’s adjudications, and remanded for a
12 new hearing. Id. ¶¶ 30-36, 68.
13 {9} We granted the State’s petition for certiorari review of whether the Court of
14 Appeals imposed the correct standard for authenticating the messages at issue and
15 whether it applied the appropriately deferential standard of review to the district
16 court’s decision to admit the messages as evidence. We conclude that the Court of
17 Appeals properly relied on the traditional standard under Rule 11-901 as the
18 framework for assessing the authenticity of the February 25 messages, but that it
6
1 misapplied the provisions of Rule 11-901(B)(1) and (B)(4) to the facts and
2 circumstances of this case and failed to afford proper deference to the district court.
3 II. DISCUSSION
4 A. Standard of Review
5 {10} We “generally review evidentiary matters for an abuse of discretion.” State v.
6 Montoya, 2014-NMSC-032, ¶ 15, 333 P.3d 935. “An abuse of discretion occurs
7 when the [evidentiary] ruling is clearly against the logic and effect of the facts and
8 circumstances of the case. We cannot say the [district] court abused its discretion by
9 its ruling unless we can characterize it as clearly untenable or not justified by
10 reason.” State v. Sanchez, 2020-NMSC-017, ¶ 21, 476 P.3d 889 (internal quotation
11 marks and citation omitted). In the authentication context, “there is no abuse of
12 discretion when the evidence is shown by a preponderance of the evidence to be
13 what it purports to be.” State v. Jimenez, 2017-NMCA-039, ¶ 18, 392 P.3d 66814 (internal quotation marks and citation omitted). However, we review de novo the
15 threshold legal question as to the proper framework within which to analyze a
16 particular evidentiary issue. See State v. Carrillo, 2017-NMSC-023, ¶ 26, 399 P.3d
17 367 (“[T]he threshold question of whether the trial court applied the correct
18 evidentiary rule or standard is subject to de novo review on appeal.”).
7
1 B. The Traditional Standard Applied Under Rule 11-901 Provides the
2 Proper Framework for Authenticating Evidence From Social Media
3 Platforms
4 {11} For evidence to be properly authenticated under Rule 11-901 there must be a
5 showing “sufficient to support a finding that the item is what the proponent claims
6 it is.” Rule 11-901(A). “The appearance, contents, substance, internal patterns, or
7 other distinctive characteristics of the item, taken together with all the
8 circumstances” may be considered in determining whether evidence has been
9 adequately authenticated. Rule 11-901(B)(4). The foundation required to
10 authenticate an item of evidence “goes to conditional relevancy,” State v.
11 Arrendondo, 2012-NMSC-013, ¶ 9, 278 P.3d 517, and triggers “a two-step
12 procedure; the [trial] judge initially plays a limited [but important], screening role,
13 and the jury then makes the final decision on the question of fact,” ultimately
14 determining the weight of the evidence. Edward J. Imwinkelried, Evidentiary
15 Foundations § 4.01[1], at 43 (Matthew Bender 11th ed. 2020).
16 {12} With the increased use of social media evidence in litigation, courts
17 nationwide have grappled with the question of whether the authenticity of evidence
18 from social media platforms is properly measured under the traditional rules of
19 authentication found in Federal Rule of Evidence 901 and its many state
20 counterparts, including our own, or, instead, whether judicial concerns over the
8
1 increased dangers of falsehood and fraud posed by the relative anonymity of social
2 media evidence warrant the adoption of heightened authentication standards. There
3 are two opposing lines of authority on this issue.
4 {13} Among the cases widely cited as embracing a heightened standard of
5 authentication for social media evidence is Griffin v. State, decided by the Maryland
6 Court of Appeals. 19 A.3d 415 (Md. 2011). In Griffin, a murder prosecution, the
7 state sought to authenticate a redacted printout of a MySpace page allegedly
8 belonging to the defendant’s girlfriend. Id. at 418-19. The printout included
9 information about the user’s username, location, birthdate, and a profile photo
10 depicting a couple embracing. Id. at 418. It also included this post: “FREE
11 BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO
12 YOU ARE!!” Id. The state sought to authenticate the printouts through the testimony
13 of the lead investigator in the case, who testified that he was able to determine that
14 the MySpace page belonged to the defendant’s girlfriend because the user’s profile
15 photograph depicted her with the defendant, the birth date matched that of the
16 defendant’s girlfriend, and the content of the message referred to the defendant,
17 whose nickname was “Boozy.” Id. The trial court admitted the MySpace evidence.
18 Id. at 419.
9
1 {14} The Griffin Court, over a two-justice dissent, concluded that the trial court
2 “abused [its] discretion in admitting the MySpace profile [under Maryland Rule of
3 Evidence] 5-901(b)(4).” Griffin, 19 A.3d at 423-24. It concluded that the display of
4 the girlfriend’s picture, “coupled with her birth date and location, were not
5 sufficient[ly] ‘distinctive characteristics’ on a MySpace profile to authenticate its
6 printout, given the prospect that someone other than [the defendant’s girlfriend]
7 could have not only created the site, but also posted the ‘snitches get stitches’
8 comment.” Id. In so holding, the Court declined to endorse the traditional
9 authentication approach and instead applied heightened scrutiny to social media
10
1 evidence “because of the heightened possibility for manipulation by other than the
2 true user or poster.” Id. at 424.2
3 {15} The Griffin Court acknowledged that its holding did not mean “that printouts
4 from social networking [web]sites should never be admitted.” Griffin, 19 A.3d at
5 427. The Court suggested the party proffering the evidence would be well advised
6 to (1) “ask the purported creator if she indeed created the profile and also if she
7 added the posting in question,” (2) “search the computer of the person who allegedly
8 created the profile and posting and examine the computer’s internet history and hard
2
The Maryland Court of Appeals (consolidating three cases to address
authentication of social media) has since endorsed the traditional approach. Sublet
v. State, 113 A.3d 695 (Md. 2015). While not formally overruling Griffin, the Sublet
Court adopted the reasoning of the Second Circuit in United States v. Vayner, 769
F.3d 125 (2d. Cir. 2014) and held that, “in order to authenticate evidence derived
from a social networking website, the trial judge must determine that there is proof
from which a reasonable juror could find that the evidence is what the proponent
claims it to be.” Sublet, 113 A.3d at 698. Once this threshold showing has been made,
the evidence is admissible, and it is the fact-finder who determines whether the
evidence is reliable and, ultimately, authentic. See Sublet, 113 A.3d at 715-16
(stating that authentication of evidence “merely renders [it] admissible, leaving the
issue of its ultimate reliability to the jury.”). Nevertheless, Griffin remains “one of
the key cases” in the development of this area of the law, cited for the proposition
that social media evidence should be subjected to a heightened degree of scrutiny
for authentication purposes. See 2 Robert P. Mosteller et al., McCormick on
Evidence § 227, at 108-09 & n.25 (8th ed. 2020); see also State v. Hannah, 151 A.3d
99, 104-05 (N.J. Super. Ct. App. Div. 2016) (describing the “Maryland approach”
as “requir[ing] greater scrutiny than letters and other paper records” (internal
quotation marks and citation omitted)).
11
1 drive to determine whether that computer was used to originate the social networking
2 profile and posting in question,” or (3) “obtain information directly from the social
3 networking website that links the establishment of the profile to the person who
4 allegedly created it and also links the posting sought to be introduced to the person
5 who initiated it.” Id. at 427-28.
6 {16} While many courts have expressed similar concerns about fraudulent
7 authorship of social media communications, few have adopted the heightened
8 requirements for a prima facie showing announced in Griffin. Instead, they have
9 endorsed the view that the traditional authentication standard is adequate to the task
10 of vetting social media evidence. See generally Tienda v. State, 358 S.W.3d 633,
11 638-642 (Tex. Crim. App. 2012) (“Courts and legal commentators have reached a
12 virtual consensus that, although [electronic media present] new . . . issues with
13 respect to . . . admissibility . . . , the rules of evidence already in place for
14 determining authenticity are at least generally adequate to the task.” (internal
15 quotation marks and citation omitted)).
16 {17} The traditional authentication approach is reflected in Tienda, id., an oft-cited
17 case from the Texas Court of Criminal Appeals. In Tienda, the defendant challenged
18 the admission into evidence of several MySpace pages that tended to implicate him
19 in a gang-related murder, including posts, photos, and instant messages. Id. at 634-
12
1 37. The state relied primarily upon testimony by the victim’s sister to authenticate
2 the posts, which she found by searching MySpace. Id. at 635. The defendant
3 objected, arguing that MySpace accounts could easily be created or accessed by
4 someone other than the purported author. Id. at 636. The trial court admitted the
5 evidence, and the Texas Court of Criminal Appeals affirmed. Id. at 637. Though
6 acknowledging “the provenance” of social media evidence “can sometimes be open
7 to question—computers can be hacked, protected passwords can be compromised,
8 and cell phones can be purloined,” id. at 641, the Tienda Court determined that “the
9 internal content of the MySpace postings—photographs, comments, and music—
10 was sufficient circumstantial evidence to establish a prima facie case such that a
11 reasonable juror could have found that they were created and maintained by the
12 [defendant].” Id. at 642. In so holding, the Tienda Court made clear that the state, as
13 the proponent of the evidence, was not required to remove all doubt over the posts’
14 provenance; this was a question for the jury to decide. Id. at 645-46 (recognizing
15 that the “possibility that the [defendant] was the victim of some elaborate and
16 ongoing conspiracy” to impersonate him on social media was a scenario for the jury
17 to assess once the state had made a prima facie showing of authenticity).
18 {18} Today we clarify that, in New Mexico, the authentication of social media
19 evidence is governed by the traditional authentication standard set out in Rule 11-
13
1 901, which requires the proponent to offer “evidence sufficient to support a finding
2 that the [evidence] is what the proponent claims it is.” See State v. Imperial, 2017-
3 NMCA-040, ¶ 28, 392 P.3d 658 (quoting Rule 11-901(A)). We reiterate that, in
4 meeting this threshold, the proponent need not demonstrate authorship of the
5 evidence conclusively; arguments contesting authorship go to the weight of the
6 evidence, not its admissibility. See State v. Jackson, 2018-NMCA-066, ¶ 19, 429
7 P.3d 674 (holding that the fact that text messages could have been authored or
8 received by someone other than the defendant did “not negate the admissibility of
9 the text messages, but rather present[ed] an alternative to the State’s suggested
10 inferences,” which would be for the jury to assess).
11 {19} Two considerations inform our decision. First, we agree with courts in other
12 jurisdictions that the authentication challenges arising from the use of social media
13 evidence in litigation are not so different in kind or severity from the challenges
14 courts routinely face in authenticating conventional writings. As one court
15 persuasively put it in analogous circumstances,
16 Rule 901 . . . does not care what form the writing takes, be it a letter, a
17 telegram, a postcard, a fax, an email, a text, graffiti, a billboard, or a
18 Facebook message. All that matters is whether it can be authenticated,
19 for the rule was put in place to deter fraud. The vulnerability of the
20 written word to fraud did not begin with the arrival of the internet, for
21 history has shown a quill pen can forge as easily as a keystroke,
22 letterhead stationery can be stolen or manipulated, documents can be
23 tricked up, and telegrams can be sent by posers.
14
1 State v. Green, 830 S.E.2d 711, 714-15 (S.C. Ct. App. 2019) (citation omitted), aff’d
2 as modified, 851 S.E.2d 440 (S.C. 2020). We are not convinced that the
3 authentication of messages passed between Facebook users poses unique obstacles
4 when compared to the authentication of evidence from other electronic sources, such
5 as text messages sent between mobile devices. See Jackson, 2018-NMCA-066, ¶¶
6 17-18 (concluding that the state’s circumstantial evidence regarding the activity of
7 two phone numbers was sufficient to authenticate an exhibit with information
8 regarding the phone numbers).
9 {20} Second, the application of more demanding authentication requirements in the
10 social media realm—such as those propounded in Griffin involving testimony from
11 the purported author of social media postings, as well as evidence gathered from the
12 user’s computer or the social media network itself—would too often keep from the
13 fact-finder reliable evidence based on an artificially narrow subset of authentication
14 factors. See Brendan W. Hogan, Griffin v. State: Setting the Bar Too High for
15 Authenticating Social Media Evidence, 71 Md. L. Rev. Endnotes 61, 85-86 (2012)
16 (observing that the authentication methods outlined in Griffin “are unnecessarily
17 specific and fail to discuss other traditional methods of authentication”). Cabining a
18 district court’s authentication analysis in this way would ultimately serve to hinder
19 the truth-seeking process, with no discernible benefit. See generally State v. Trujillo,
15
1 2002-NMSC-005, ¶ 16, 131 N.M. 709, 42 P.3d 814 (discouraging a reading of our
2 rules of evidence that “would deprive the jury of reliable . . . evidence relevant to
3 the jury’s truth-seeking role”). We decline to impose additional authentication
4 requirements for evidence that may be adequately vetted using the gatekeeping tools
5 already at hand.
6 {21} Having determined that the traditional authentication standard arising under
7 Rule 11-901 provides the appropriate framework for evaluating the authenticity of
8 the February 25 messages, we next turn to the question of whether the Court of
9 Appeals properly applied that framework in determining whether the district court
10 abused its discretion in admitting the State’s exhibits.
11 C. The Court of Appeals Erred in Concluding That the District Court
12 Abused Its Discretion in Admitting Evidence of the February 25
13 Messages
14 {22} In reviewing Child’s claim that the district court abused its discretion in
15 admitting the February 25 messages, the Court of Appeals correctly held that “our
16 rules for authentication provide an appropriate framework for determining
17 admissibility.” Jesenya O., 2021-NMCA-030, ¶ 21. However, the Court then applied
18 an unduly exacting standard in concluding that, because Child denied sending the
19 messages, the State failed to proffer business records connecting the messages to
20 Child, and the communications themselves failed “to establish that only Child could
16
1 have authored [them],” “the district court abused its discretion in admitting the
2 [evidence].” Id. ¶¶ 26-29.
3 {23} “Rule 11-901(B) provides a non-exhaustive list of examples of evidence that
4 satisfy the authentication requirement.” Salehpoor v. N.M. Inst. of Mining and Tech.,
5 2019-NMCA-046, ¶ 27, 447 P.3d 1169. For instance, evidence may be authenticated
6 by a witness with knowledge “that an item is what it is claimed to be.” Rule 11-
7 901(B)(1). The authentication of evidence may also be “based on distinctive
8 characteristics [such as] appearance, contents, substance, internal patterns, or other
9 distinctive characteristics of the item, taken together with all the circumstances.”
10 Salehpoor, 2019-NMCA-046, ¶ 27 (internal quotation marks and citation omitted).
11 {24} Here, the State proffered several indicia of Child’s authorship of the disputed
12 messages, including the presence of Child’s name and profile photo on the
13 exchanges, testimony from Erickson, the person who received the messages, and
14 strong contextual clues as to authorship revealed in their content. This evidence was
15 sufficient to support the district court’s finding that a reasonable juror could
16 determine that Child authored the messages and that the exhibits displaying the
17 messages were what the State claimed them to be. See Rule 11-901(A) (providing
18 that the authentication requirement is satisfied if the proponent “produce[s] evidence
19 sufficient to support a finding that the item is what the proponent claims it is”).
17
1 {25} We start by acknowledging that the presence of what appear to be Child’s
2 name and photo on the February 25 messages was, standing alone, insufficient to
3 establish that the messages were issued by Child or from her account. See State v.
4 Acosta, 489 P.3d 608, 625 (Or. Ct. App. 2021), appeal dismissed and opinion
5 vacated on other grounds, 504 P.3d 1178, (Or. 2022) (concluding that the
6 appearance of Facebook messages that seemingly were sent from “an account that
7 bore [the] defendant’s name and included pictures that matched [the] defendant’s
8 physical appearance,” were “not dispositive” of the issue of authentication).
9 However, evidence of the appearance of social media messages, including
10 usernames and profile pictures, may be probative circumstantial evidence of
11 authentication when considered in conjunction with additional factors of relevance.
12 See id. at 625-26 (identifying “[a] Facebook account matching [the] defendant’s
13 name and profile picture” as one of several factors that could prompt a reasonable
14 person to conclude that “it was [the] defendant and not one of [his cohorts] who was
15 sending messages from the [defendant’s] profile”); Parker v. State, 85 A.3d 682, 688
16 n.43 (Del. 2014) (noting that a photo and profile name appearing on the printout of
17 a Facebook page “are certainly factors that [a] trial court may consider” in its
18 authentication analysis).
18
1 {26} Here, the State provided additional foundational support through Erickson’s
2 undisputed testimony that he and Child had relied heavily, if not exclusively, on the
3 Facebook Messenger platform in conversing with each other during the weeks
4 leading up to the incident at issue here. As an active participant in those earlier
5 Facebook message exchanges, as well as the critical February 25 message exchange,
6 Erickson was clearly “a witness with knowledge” of the Facebook messages within
7 the meaning of Rule 11-901(B)(1). As such, he was well positioned to provide direct
8 testimony that the State’s exhibits accurately depicted the screenshots of the
9 messages he received not long after the incident. See Kays v. Commonwealth, 505
10 S.W.3d 260, 269 (Ky. Ct. App. 2016) (upholding the authentication of Facebook
11 messages attributed to the defendant where each message was introduced through
12 and identified by the person who sent or received it and “each one [was] linked to
13 the witness introducing it by personal knowledge”).
14 {27} Not only did Erickson provide unchallenged testimony concerning his prior
15 course of dealing and history of communication on Facebook with Child, he also
16 testified that he continued to follow postings made by Child on the same Facebook
17 account in the months between the car incident and the adjudicatory hearing. Thus,
18 Erickson’s testimony tended to establish that it was Child—and not someone posing
19 as Child—who communicated with Erickson in the February 25 messages. To the
19
1 extent that Child suggested in her testimony that someone else may have had access
2 to her phone and authored the messages at issue, this was an assertion to be weighed
3 by the jury in its consideration of the evidence and not a bar to its admissibility. See
4 Jackson, 2018-NMCA-066, ¶ 19 (holding that the fact that text messages could have
5 been authored or received by someone other than the defendant did “not negate the
6 admissibility of the text messages, but rather present[ed] an alternative to the State’s
7 suggested inferences,” which would be for the jury to assess).
8 {28} Finally, the content and substance of the February 25 messages evince
9 “distinctive characteristics” offering foundational support for their authenticity. See
10 Rule 11-901(B)(4) (including “distinctive characteristics” among examples of what
11 will satisfy the authentication requirement). As we have said, a proponent of
12 evidence need not demonstrate authorship conclusively to satisfy the authentication
13 requirement; to require otherwise would be to impose a heightened standard of
14 admissibility on this type of evidence. See State v. Candelaria, 2019-NMCA-032, ¶
15 55, 446 P.3d 1205 (concluding that evidence was admissible because it was
16 “sufficient to permit a reasonable jury to believe” that it was what it purported to be
17 and stating that arguments weighing against authenticity “went to the weight of the
18 evidence, not its admissibility”). In keeping with this principle, courts and
19 commentators widely agree that for a writing, digital or otherwise, to be sufficiently
20
1 distinctive for authentication purposes, “[t]he knowledge [of its contents] need not
2 be uniquely held by the purported signer [or sender], but the smaller the group of
3 persons with such knowledge, the stronger the desired inference of authorship.” 2
4 Robert P. Mosteller et al., McCormick on Evidence § 224, at 93 (8th ed. 2020). Thus,
5 social media communications whose contents are known or knowable by only a
6 handful of persons are routinely recognized as qualifying for authentication on the
7 basis of their distinctive characteristics. See, e.g., Sublet v. State, 113 A.3d 695, 720-
8 21 (Md. 2015) (upholding the authentication of Twitter messages that “referenced a
9 plan” for retaliation “that had . . . been created in response to events occurring that
10 same day” and was known by “only a small pool of [seven] individuals,” including
11 the defendant); see also Acosta, 489 P.3d at 625 (concluding that the trial court erred
12 in excluding Facebook messages that “included substance that was uniquely
13 associated with [the] defendant” or only a very small group of people who were
14 using the account at the time).
15 {29} The exclusive focus of the messages at issue here was the car incident of the
16 previous night, with the person using Child’s profile initiating the discussion by
17 expressing remorse for actions that night and asking Erickson whether he had
18 reported the incident to the police. Given the short amount of time between the
19 incident and the Facebook Messenger exchange, a reasonable juror could have
21
1 determined that the number of parties in possession of the information revealed in
2 the communications was very small.
3 {30} The Court of Appeals concluded that the State’s circumstantial evidence of
4 authenticity was inadequate, in part because the content of the messages was not
5 “sufficiently confidential to establish that only Child could have authored the
6 messages.” Jesenya O., 2021-NMCA-030, ¶ 28 (emphasis added). This test applied
7 by the Court of Appeals is at odds with the flexible approach that the authentication
8 process envisions, under which the genuineness of a particular document—whether
9 conventional or digital—is assessed through reliance on reasonable inferences, not
10 absolute certainty. See Jackson, 2018-NMCA-066, ¶¶ 17-19 (concluding that the
11 state’s circumstantial evidence regarding the activity of two phone numbers was
12 sufficient to authenticate an exhibit with information regarding the phone numbers);
13 see also State v. Smith, 181 A.3d 118, 136 (Conn. App. Ct. 2018) (rejecting the view
14 that “the state bore the insurmountable burden of ruling out any possibility that the
15 [Facebook] message was not sent by the defendant”); Acosta, 489 P.3d at 625-26
16 (“Even if it were possible that someone else sent the messages from the profile
17 matching [the] defendant’s name and picture, the evidence was sufficient for a
18 reasonable person to be satisfied that it was, in fact, [the] defendant who sent
19 them.”); cf. State v. Romero, 2019-NMSC-007, ¶¶ 41-44, 435 P.3d 1231 (concluding
22
1 that the “totality of the circumstances” surrounding a recording of an inmate’s phone
2 call was sufficient to authenticate a detective’s identification of the defendant as the
3 inmate on the call). Equally as important, such an approach fails to afford due
4 deference to the discretion of the district court, which is charged with determining
5 whether a preponderance of the evidence supports a finding of authenticity. See
6 Jimenez, 2017-NMCA-039, ¶ 18 (“[T]here is no abuse of discretion when the
7 evidence is shown by a preponderance of the evidence to be what it purports to be.”
8 (internal quotation marks and citation omitted)).
9 {31} Where, as here, a proper foundation has been established under Rule 11-901,
10 it is for the jury to decide whether a particular person or entity was the author or
11 recipient of a given digital communication. In this regard, we endorse the
12 authentication procedures previously outlined by our Court of Appeals in Jackson,
13 a case involving an exhibit displaying cellular text messages. 2018-NMCA-066, ¶¶
14 18-19. The Jackson Court, faced with a defense argument that it was “possible” that
15 persons other than the defendant authored the text messages in question, said:
16 It was for the jury to decide whether [the d]efendant was the author or
17 recipient of the text messages in the exhibit. . . . [The d]efendant’s
18 argument that the text messages in the exhibit could have been authored
19 or received by someone else, does not negate the admissibility of the
20 text messages, but rather presents an alternative to the State’s suggested
21 inferences.
23
1 Id. ¶ 19. As Jackson instructs, Child’s argument, premised on the possibility that
2 others could have sent the February 25 messages, went to the weight of the evidence,
3 not its admissibility. Id. Accordingly, it was for the jury to assess that argument in
4 determining, as an ultimate matter, whether the communications were authentic.
5 {32} We hold the appearance of the messages, the disputants’ frequent prior
6 Facebook Messenger communications, and the content of the messages, when taken
7 together and viewed in combination, were sufficient to support a finding that the
8 screenshots of those messages were, more likely than not, what they purported to be.
9 Given the highly deferential nature of abuse of discretion review, there was no cause
10 to disturb the ruling made by the district court.
11 III. CONCLUSION
12 {33} Because we hold the district court reasonably could find that the State met its
13 low threshold of proof in establishing prima facie the authenticity of the February
14 25 messages, we reverse the Court of Appeals’ determination on that issue and
15 reinstate Child’s delinquency adjudications.
16 {34} IT IS SO ORDERED.
24
1
2 BRIANA H. ZAMORA, Justice
3 WE CONCUR:
4
5 C. SHANNON BACON, Chief Justice
6
7 MICHAEL E. VIGIL, Justice
8
9 DAVID K. THOMSON, Justice
10
11 JULIE J. VARGAS, Justice
25