State v. Smith, 192 So. 3d 836

Background

Defendant Demontre Smith is charged with aggravated assault with a firearm based on an alleged June 21, 2015 incident and subsequent threatening social-media messages.
At the preliminary hearing, Officer Kezia Harvey testified the victim showed her printouts/screenshots of messages and a photo of Smith holding a revolver viewed on the victim’s phone; she identified Smith in court as the person in the photo but had never met him before and could not independently verify the image’s source or integrity.
The printouts/screen captures lacked visible usernames, dates, or other metadata tying them to Smith; Officer Harvey did not subpoena the social-media provider, verify IP data, or otherwise authenticate the account.
At a contradictory hearing on Smith’s motion to exclude digital evidence for lack of authentication, the State presented no evidence to authenticate the social-media posts; the trial court nevertheless denied the motion, reasoning authentication could be addressed on cross-examination at trial.
Smith sought supervisory review; this court stayed proceedings, reviewed whether the trial court abused its gatekeeping function under La. C.E. art. 901, and resolved the writ.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State met its burden to authenticate social-media printouts under La. C.E. art. 901	The State asserted it could authenticate at trial and that authentication is a low, non-burdensome threshold; victim testimony may be protected and not required pretrial	Smith argued the State presented no evidence at the contradictory hearing to show the posts were created by or linked to him	The court held the State presented no authentication evidence at the hearing; the trial court abused its discretion by admitting the posts without requiring proof under art. 901
Proper role of trial court vs. jury on preliminary authenticity questions	State suggested authentication could occur at trial and that pretrial authentication need not be exhaustive	Smith contended authentication is a condition precedent to admissibility and the proponent must satisfy art. 901 at hearing	The court explained authentication is a gatekeeping, preliminary question for the court; if proponent fails to meet threshold, evidence must be excluded or at least the court must provisionally admit only when facts are equally plausible
Applicable standard for authenticating social-media evidence	State relied on the low "reasonable juror" threshold and suggested later proof would suffice	Smith argued the State bore the burden to produce evidence (direct or circumstantial) at the contradictory hearing	The court adopted the "reasonable juror" standard (proof sufficient for a reasonable juror to find authenticity) and remanded for an art. 901 hearing where the State must present such evidence
Appropriate remedy for failure to authenticate at hearing	State asked to affirm trial court or permit authentication at trial	Smith requested exclusion or review of the trial court’s ruling	The court vacated the trial court’s ruling, granted the writ, lifted the stay, and remanded for an evidentiary hearing outside jury presence so the State may attempt authentication under art. 901

Key Cases Cited

State v. Mosby, 595 So.2d 1135 (La. 1992) (abuse-of-discretion standard for admissibility/relevancy rulings)
State v. Lee, 826 So.2d 616 (La. App. 4th Cir. 2002) (document must be sufficiently identified as the one involved in the occurrence)
U.S. v. Gagliardi, 506 F.3d 140 (2d Cir. 2007) (low bar for authentication; proponent need not eliminate all possibilities inconsistent with authenticity)
Griffin v. State, 19 A.3d 415 (Md. 2011) (MySpace screenshot required greater foundational scrutiny; face and DOB alone insufficient)
Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) (reasonable-juror standard; social-media authentication may be like email/text authentication)
U.S. v. Vayner, 769 F.3d 125 (2d Cir. 2014) (mere existence of online content does not prove authorship; authentication may be direct or circumstantial)
Sublet v. State, 113 A.3d 695 (Md. 2015) (adopted reasonable-juror standard and outlined common methods to authenticate social-media posts)
State v. Charles, 617 So.2d 895 (La. 1993) (proponent bears initial burden to introduce admissible evidence)