The Risks of Taking Facebook at Face Value: Why the Psychology of Social Networking Should Influence the Evidentiary Relevance of Facebook Photographs

Brown, Kathryn R.
January 2012
Vanderbilt Journal of Entertainment & Technology Law;Winter2012, Vol. 14 Issue 2, p357
Academic Journal
Social networking sites in general, and Facebook in particular, have changed the way individuals communicate and express themselves. Facebook users share a multitude of personal information through the website, especially photographs. Additionally, Facebook enables individuals to tailor their online profiles to project a desired persona. However, as social scientists have demonstrated, the image users portray can mislead outside observers. Given the wealth of information available on Facebook, it is no surprise that attorneys often peruse the website for evidence to dispute opponents' claims. This Note examines the admission and relevance of Facebook photographs offered to prove a litigant's state of mind. Part I explores social science and evolving case law in the social networking arena, discussing courts' tendencies to find Facebook photographs discoverable and admissible in civil and criminal litigation. Part II analyzes courts' assessments of the relevance of Facebook photographs as proof of litigants' remorse or happiness. Part III proposes mechanisms to aid fact-finders in evaluating Facebook photographs to better ensure a fair trial. In order to screen out irrelevant photographs before presentation to a jury, courts ought to be receptive to parties' requests for in camera review of Facebook photographs. As to photographs admitted into evidence, courts should be open to litigants' requests for expert and lay testimony on Facebook's social norms. Finally, this Note stresses the need for litigants to educate themselves on Facebook, and advocates further study on the website for purposes of discerning the precise risks of taking Facebook photographs at face value.


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