By Richard A. Mann, Mann Law PC
The Indiana Court of Appeals on December 22, in the case of M.T.V. v State of Indiana, 36A05-1607-JV-1681 held that the Facebook posts between two high school students were admissible as evidence of a conspiracy to commit felonies. The case involved the students’ plan to commit a Columbine-style attack at Seymour High School on the anniversary of the Columbine attack. The students were overhead discussing the attack by another student at the cafeteria table. That student reported what was said to the school officials who called the police. In their investigation police obtained records of Facebook posts between the two students.
The two students involved in the Facebook posts were questioned and M.T.V. was charged and convicted. During the trial, the posts were admitted over the defendant’s objections of improper foundation and argument that the statements were hearsay and not qualified as a business record. The court did not reach the issue as to whether it was a business record as the court found it admissible under Evidence Rule 901(a), Rule 801(d)(2)(A) as an opposing party’s statement and Rule 801(d)(2)(E) as a statement by a co-conspirator in furtherance of a conspiracy. The court analyzed how the statement fell within Rule 801(d)(2) and, therefore, was not hearsay.
What one should take away from this case is to introduce a Facebook post you first need to be able to authenticate the post as that of the person whose statement you are trying to introduce. Once you authenticate the statement, your work is not done. The post must also fit within a rule that otherwise makes the statement admissible. As this case points out, first you authenticate and then you must show it is not hearsay or is admissible under another rule.
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