Rarely do we write about criminal cases on this site, but we did feel it appropriate to mention a new case in which the defendant challenged his burglary and assault convictions, in part, on the grounds that his lawyer did not object to the admission of certain Facebook posts into evidence. State v. Fawver, No. 32271-8-III (Wash. Ct. App. June 9, 2015 (unpublished).
The facts were these:
The incident in question arose after Mr. Fawver was forcefully thrown out of a New Year’s Party at the residence of Christopher Pierce in Deer Park. Pierce punched and pushed Fawver out of the event in the early hours of January 1, 2013. Fawver left on foot and texted a friend that he had been “jumped” at the party.
Three friends arrived in a truck to pick up Fawver; they were followed in another car by two other men. The six men drove in the two vehicles back to Pierce’s residence, arriving around 3:00 a.m. Several of the men, armed with baseball bats, entered the residence and a melee ensued. Many of the partygoers fought back against the invaders. Two of them identified Fawver as being among the group wielding baseball bats.
A detective later found a Facebook post on the page of one “Corey Fawner” in which the owner of the account posted the following status update: “Wow What a fun Night ppl [people] in dp [Deer Park] are not bad as they think they are.” The defendant was, of course, convicted.
On appeal, the defendant raised the issue of ineffective assistance of counsel because his attorney failed to object to the Facebook post.
Finding the the defendant’s argument that the Facebook post was not properly authenticated to be “questionable,” the court noted as follows:
There are at least as many ways to try a case as there are trial attorneys. Skilled counsel often do not raise objections to the form in which otherwise admissible evidence is entered. In most instances, it will be nigh impossible to establish that counsel erred by failing to make an objection that, if successfully lodged, would simply require the opposing party to offer the evidence in a different manner. That is the situation here. Mr. Fawver does not argue that the posting could never be authenticated; he only argues that this authentication was inadequate. Under the circumstances, it is doubtful that counsel’s decision to not object was such an egregious decision that it constitutes a failure to live up to the standards of the profession.
Nonetheless, even if this type of behavior could constitute error under Strickland, it does not do so here. Mr. Fawver has identified no Washington authority, nor have we, that sets forth authentication requirements for Facebook postings. On that basis alone, it is difficult to conclude that counsel erred since there is no governing authority to establish a failure to adhere to professional norms.
However, the court also went to some length to describe how the Facebook post, or “screen-grab” as it called it, was authenticated:
Given the unique comment posted so close in time to the assault, the fact that a friend of Mr. Fawver recognized it as his Facebook page, the name on the post matched Mr. Corey Fawver’s name, the picture was identified as the picture of Mr. Fawver, and the fact that Facebook is widely known to generally be password protected, the Facebook post appears to have been properly authenticated.
Keep that in mind, folks. Most of those authentication components would be the same regardless of whether the evidence was digital in nature. The circumstances surrounding the post, the manner in which the detective was led to it, and the facts contained therein all served to authenticate it.
Remember that when you’re litigating these issues in civil cases.