Evidence – Authentication – Facebook

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Where a defendant was convicted of dissemination of obscene material to a minor, the trial judge did not err in admitting into evidence a Facebook message and an accompanying video attached to the message that was sent to the victim.

Affirmed.

“… [T]he evidence before the judge was sufficient to authenticate the Facebook message as a digital communication sent to the victim by the defendant. See Mass. G. Evid. section901(b)(4), (11) (2019). Furthermore, we conclude that because the evidence presented by the Commonwealth was sufficient to permit the judge to conclude beyond a reasonable doubt that the defendant sent the video to the victim, the judge did not err in denying the defendant’s motion for a required finding filed at the close of the Commonwealth’s case. …

“… [T]he defendant argues on appeal that the video and the communication that it was attached to were admitted without a proper evidentiary foundation because the Commonwealth failed to authenticate the digital message containing the video as a message purposefully sent by him. …

“Prior to trial, the defendant objected to the Commonwealth’s motion in limine to admit Facebook account records pertaining to ‘an account registered to Urbano Meola’ and obtained by the Commonwealth pursuant to a subpoena for business records directed to Facebook under Mass. R. Crim. P. 17. In particular, the defendant argued that the records in question were not ‘certified,’ because there was no affidavit from a keeper of the records or a witness who would identify them as business records maintained by Facebook. …

“… The question before us thus becomes whether the judge abused his discretion or committed palpable error in determining that, even without the benefit of the Facebook account records, a fact finder could find that it was more likely than not that the Facebook message was authentic and, in particular, that it was sent by the defendant. …

“Although we have not found a Massachusetts case or a published opinion from another jurisdiction with facts exactly like those involved in this case, we conclude that the judge did not abuse his discretion in determining that the foundational facts constituted sufficient confirming circumstances to authenticate the Facebook message as having been sent by the defendant. … Here, the judge not only had evidence that the Facebook message was from an account in the name of ‘Urbano Meola,’ but he also had evidence that the attached video depicted the ‘Urbano Meola’ who is the defendant. And, the content of the attached video revealed highly intimate and personal details about the defendant that, because it was self-authored, would be known only to the defendant or someone with whom he chose to share it. There was no evidence before the judge that the attached videotape had been shared with anyone else or otherwise published. Simply because evidence is digital or electronic in nature, as opposed to documentary, does not necessarily mean that it is widely available to others or to anyone other than its maker. Finally, the Facebook message also included a profile picture of the defendant’s biological daughter. Again, there was no evidence before the judge that this image had been published or was generally available to persons other than the defendant. And, the victim received a follow-up ‘friend request’ from the same account a few days after she received the offensive videotape. Bearing in mind that ‘the possibility of alteration does not and cannot be the basis for excluding e-mails as unidentified or unauthenticated as a matter of course,’ … we conclude that these ‘confirming circumstances’ provided a basis for the judge’s preliminary determination under Mass. G. Evid. section104(b), that the Facebook message was an authentic communication from the defendant. We reiterate, however, that in order to authenticate a digital communication such as a Facebook message, the proponent of the evidence must present ‘confirming circumstances’ beyond simply the fact that the message was sent from an account in the name of the alleged author. …

“In the present case, on the basis of the Facebook message from ‘Urbano Meola’ to the victim, including a profile picture of the defendant’s biological daughter (the victim’s half-sister), accompanied by what could be found to be a self-authored video of the defendant, unclothed and touching his penis and anus, along with the evidence that the defendant, his biological daughter, the victim’s mother, and the victim lived in the same household for six years, the judge, as the finder of fact, was warranted in concluding beyond a reasonable doubt that the defendant purposefully disseminated matter harmful to a minor to the victim, knowing that she was a minor, in violation of G.L.c. 272, section28. … Accordingly, there was no error in denying the defendant’s motion for a required finding.”

Commonwealth v. Meola (Lawyers Weekly No. 11-057-19) (23 pages) (Agnes, J.) Case heard by Jennings, J., in District Court. Mehmet Baysan for the defendant on appeal; Benjamin Lees (Kevin J. Curtin also present) for the commonwealth (Docket No. 18-P-83) (May 22, 2019).

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