Sublet, Harris & Monge-Martinez v. State

BATTAGLIA, J. The rapid rise of social networking websites, 1 themselves a branch of social media, 2 once again gives us cause to explore the authentication of documents related to this genre, under Maryland Rule 5-901, which provides that the “requirement of ⁶³⁷ authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims”, in three cases, Sublet v. State, Harris v. State and Monge-Martinez v. State, consolidated for the purposes of this opinion. All three cases involve the same legal issues, those being the elucidation and implementation of our opinion in Griffin v. State, 419 Md. 348 , 19 A.3d 415 (2011), in which we addressed the admissibility of a screenshot 3 of a MySpace 4 page, and its application to the authentication of screenshots of messages allegedly sent through social networking websites; in Sublet, via a Facebook 5 timeline; 6 in Harris, on ⁶³⁸ Twitter 7 through “direct messages” 8 and public “tweets”; 9 and, in Monge-Martinez, through Facebook messages. 10 We shall hold that, in order to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be. We shall hold in Sublet that the trial court did not err in excluding the admission of the four pages of the Facebook conversation. We shall hold in Harris that the trial court did not err in admitting the “direct messages” and “tweets” in evidence.

We shall also hold in Monge-Martinez that the trial court did not err in admitting the Facebook messages authored by Monge-Martinez. Sublet v. State Albert Sublet, the first Petitioner herein, was charged by indictment in the Circuit Court for Anne Arundel County with three counts of first degree assault, second degree assault and reckless endangerment, as well as with one count of carrying a deadly weapon with intent to injure. The charges against Sublet arose out of a fight that occurred among Sublet, Chrishell Parker, her mother and her sister, in late October of 2012. According to the State’s theory of the case, Sublet ⁶³⁹ became aggressive when he arrived at Ms. Parker’s apartment to pick up his girlfriend, Ymani Conner, and initiated an altercation; Sublet urged, conversely, that it was Ms. Parker who was the instigator.

During cross-examination of Ms. Parker, Sublet’s counsel sought to introduce into evidence four pages alleged to have been a printout from Ms. Parker’s Facebook page of a “conversation” among seven different individuals. The document submitted to Ms. Parker for review consisted of four pages and written across the top of each page was “printed on 1O30-12 from Facebook”. 11 Each of the nineteen entries in the four pages contained the name of the profile that had allegedly created it, as well as the time the entry was created. Next to the name of the profile was also a picture. The four pages were collectively received for identification as Defense Exhibit A 12 With respect to the conversation in issue, the first page began on “Saturday” with a statement associated with the profile “Chaniea DatBytch Brown”, which Ms. Parker identified as Ms. Brown’s Facebook username, while the fourth post on the first page was related to the name “Cece Parker”.

When asked if she had discussed the altercation on Facebook, Ms. Parker stated that she had connected with Chaniea Brown through Facebook and that she herself used the name Cece Parker: [ATTORNEY FOR SUBLET]: Well, have you discussed [the fight] in social media? [MS. PARKER]: Social media? [ATTORNEY FOR SUBLET]: Like Facebook? [MS. PARKER]: Well, I’m not going — people inboxed me and said I heard what happened to you, are you okay? And, yes, I have discussed it on Social Network. ⁶⁴⁰ [ATTORNEY FOR SUBLET]: Okay.

And you discussed it with a lady by the name of Shanika [sic] Brown, is that correct? [MS. PARKER]: Yes. [ATTORNEY FOR SUBLET]: And with a lady by the name of CiCi [sic] Parker? [MS. PARKER]: That’s me. The posts depicted on the first page were: Chanica DatBytch Brown Saturday via Mobile Had a BLAST lastnight ...

Shit got hectic hahaha ymani has more to come..lmaowack bytch Share • 2 people like this CanDii SoSeductive P Smhh Saturday at 13:12 via mobile Camerin Kill’Ent Johnson Yessssssa lol Saturday at 14:15 via mobile Cece Parker yea everytime i see that bitch ima fuck that dirty pussy bitch up. shout out to cam cam u was riden Saturday at 15:42 via mobile • 1 Tyesha Glover hahahahaha yea whore i agree........@ cece the whole hood was ridin Saturday at 17:24 Cece Parker yea., dey was tho that shit was crazy Saturday at 20:27 via mobile ■ 1 On the second page was a single entry affiliated with the user name “Zaquane Graham” lamenting being left out of the conversation: Zaquane Graham Yall n[* * * *]s maken me mad not tellin a n[* * *]a was goin on the way i feel im sayin fuck it dam im way down here and yall not tryin to keep me postedon was goin on u know wat fuck it i dn want to know Yesterday at 18:42 via mobile ⁶⁴¹ On page three, Ms. Brown purportedly conversed with “Zaquane Graham” and “Tonisha Brown”: Chanica DatBytch Brown Yesterday via Mobile She still tawkn shit mmmhm but u want to block me u not real ymani Conner u can keep hiding u an ya broke ass man that jus started working at bed bath an beyond out in the mall we will find yal or shuld i say u cuz he goin jail i got his pic Imao stupid hoe kp ya legs close bitch dont go down gardens cuz (INSIDER) its not safe lol Share • 3 people like this. Zaquane Graham Dammm thats real talk y yall fightin anyway im about o kick both yall assess y yall fightin Yesterday at 15:02 via mobile Tonisha Brown I love you. .you got me pissed off so take ya time read what I said an u will get it.. Yesterday at 15:19 via mobile ■ 1 Chanica DatBytch Brown im not tripn off nobody u dnt even nko nothing so..... Yesterday at 15:40 via mobile Zaquane Graham Inbox me nica Yesterday at 15:40 via mobile Chanica DatBytch Brown an thats not my godsister an i stamp that....

Yesterday at 15:42 via mobile The fourth page contained six posts; an initial one identified with “Chanica DatBytch Brown”, followed by two more posts allegedly from “Cece Parker”: Chanica DatBytch Brown demondra trenice Erica are my godsisters motjer of mines Yesterday at 15:43 via mobile Cece Parker ima say this it anit over # fact Yesterday at 16:40 via mobile Cece Parker her bf is a dead man walkn ⁶⁴² Yesterday at 16'M via mobile Zaquane Graham Wtf is goin for real Yesterday at 17:05 via mobile Chanica DatBytch Brown call me brova 4438227645 @cece i kno i freí u my G Yesterday at 20:56 via mobile Chanica DatBytch Brown feel u Yesterday at 20:56 via mobile At trial, Ms. Parker was confronted with the four pages by Sublet’s counsel, who asked her to “look this over” and then asked her if she had “said those things” attributed to her, to which she agreed. When Sublet’s counsel then inquired as to whether Ms. Parker disliked Ms. Conner, Ms. Parker asserted that she did not know Ms. Conner prior to the night of the incident and, furthermore, urged that she did not have “any personal animosity against Ms. Conner”. As defense counsel began to ask about the content of the entry attributed to Ms. Parker on the fourth page that read, “her bf is a dead man walkn”, the trial judge intervened to address the issue of authentication of the Exhibit: [ATTORNEY FOR SUBLET]: What about this statement? [MS. PARKER]: That’s not to her.

I don’t know what she’s talking about. It’s two different things. [ATTORNEY FOR SUBLET]: So when you said — these are your words, you said, her boyfriend is a dead man walking— [STATE’S ATTORNEY]: Objection, your Honor. THE COURT: One moment. Just a moment.

Let me ask counsel to approach the bench. And ask the jury to disregard the statement from counsel at this time. Outside the presence of the jury, the trial judge stated that, “it [was] not clear to [him]” that “[Ms. Parker] agrees that everything is something that she wrote.” The judge then permitted Sublet’s attorney to continue questioning Ms. Parker “to see if there are any things that say [‘Cece’] that she does not agree that she wrote”. ⁶⁴³ During further questioning by Sublet’s counsel, Ms. Parker affirmed that it was her picture next to the entries allegedly authored by “Cece Parker”. Sublet’s attorney then directed Ms. Parker to “Look at all of the pages”, “If you find one that you didn’t write, please let us know”, to which Ms. Parker asserted she did not write the entries on the last page, and she did not understand where they came from.

Upon further exploration by Sublet’s counsel regarding the genesis of page four, Ms. Parker explained that she “[gave] her logout name and password to other people”, such as “[t]he girl Shanika [sic]” and, ostensibly, to others, who would “hack your page and [write] stuff on there”: [ATTORNEY FOR SUBLET]: Do you have a Facebook page? [MS. PARKER]: Uh-huh. [ATTORNEY FOR SUBLET]: Is that correct? [MS. PARKER]: Uh-huh. [ATTORNEY FOR SUBLET]: And it is in the name of CiCi [sic] Parker, is that correct? [MS. PARKER]: Yeah, but I give my logout name and password to other people too. [ATTORNEY FOR SUBLET]: Who? [MS.

PARKER]: The girl Shanika [sic] I gave it to her. So, that’s why I’m like, I didn’t understand the last page. So, it might have been her on my page. THE COURT: I am sorry, who did you say you gave it to? [MS.

PARKER]: Shanika. [sic] [ATTORNEY FOR SUBLET]: But you are conversing with Shanika [sic]. [MS. PARKER]: No. [ATTORNEY FOR SUBLET]: So, Shanika [sic] is conversing with herself on Facebook? [MS. PARKER]: No. That’s what they do on there. Like they will hack your page and be writing stuff on there.

The trial judge, thereafter, sustained the State’s objection to admission of all four pages of Exhibit A, based upon three ⁶⁴⁴ findings: that Ms. Parker’s password was not a secret, that other people could and had presumably accessed and changed or inserted information on Ms. Parker’s Facebook page, thereby attributing it to her, and that Ms. Parker’s explanation was not disputed by expert testimony: THE COURT: Okay. I am inclined to sustain the objection because the witness has testified, A, that her password is not a secret. B, that other people can and have hacked her Facebook page and have changed statements on it. And, C, if I am not losing track of my bullet points, we don’t have expert testimony to dispute her.

So, we have only one layperson’s testimony, which is that she has had the experience that people have altered her Facebook page including the statements, the conversations and therefore, she, in this particular case, thinks that is altered and she didn’t actually do that. So, I don’t even find by a preponderance of the evidence that there is a sufficient basis for reliability to admit it. So, I will sustain the objection at this time. Sublet subsequently was convicted of two counts of second degree assault and sentenced to ten years’ imprisonment with all but four years suspended, as well as five years’ probation.

In an unreported opinion, the Court of Special Appeals affirmed the trial court’s exclusion of the Facebook pages. 13 We granted Sublet’s Petition for Certiorari to address the following questions: 1. Did the lower courts err by excluding crucial Facebook evidence on authentication grounds where the suspected author of the Facebook posts testified at trial, admitted discussing the fight on Facebook, and recognized this specif ⁶⁴⁵ ic Facebook conversation, and where the posts contained numerous distinctive characteristics demonstrating authenticity? A. In excluding crucial Facebook evidence on authenticity grounds, did the lower courts err by applying an incorrect legal standard? B. In assessing the Facebook evidence, did the lower courts err by not applying a correct and complete authentication analysis?

Sublet v. State, 438 Md. 739 , 93 A.3d 288 (2014). Harris v. State Following a shooting at the Rockville Metro Station on May 18, 2012, in which Jared C. 14 and Wasima Gary were injured, Tavares Harris, the second Petitioner herein, was charged in a nine count indictment with two counts of attempted first degree murder, two counts of attempted second degree murder, two counts of assault in the first degree, two counts of use of a handgun in the commission of a felony and one count of conspiracy to commit murder. The day before the subject shooting, during a fight among students at Richard Montgomery High School, Keon, a friend of Harris’s, was punched by James, a friend of Jared C.’s. Apparently, according to trial testimony, the punch occurred because Jared C. planned to rob Keon.

Harris, according to the State, then planned to shoot Jared C. in retaliation, as reflected in “direct messages” 15 sent via Twitter and recovered from an iPhone 16 found in Harris’s bedroom during the execu ⁶⁴⁶ tion of a search warrant, as well as public “tweets” 17 obtained from an Android phone 18 recovered from Harris’s person. During discovery, the State notified the defense that it “intend[ed] to call Montgomery County Police Detective Jesse Grimes as an expert -witness in [this] case” and that he would testify with respect to, inter alia, “analysis and interpretation of digital evidence” recovered during the investigation, including the “direct messages”. At trial, prior to Detective Grimes’s testimony as an expert in the field of forensic examination of cell phones, the State informed the trial court that it would “want to move into evidence ... those contents of the twitter messages”, to which Harris’s counsel objected. The trial judge decided the issue of authentication outside the presence of the jury.

The State proffered that Detective Grimes would testify that, through the use of special software, he had retrieved the “direct messages” from the iPhone and determined that “TheyLovingTc” and “OMGitsLOCO” were the participants to the conversation, based upon “some more information that the phone carries that reflects this chat.” The State proffered, furthermore, that through Detective Grimes it would move into evidence the forensic examination report of the iPhone he had compiled, which included the content of the conversation, the times the respective “direct messages” were sent and received by the phone, and that “OMGitsLOCO” and “TheyLovingTc” were the parties to the conversation. 19 The “direct messages” reflected a conversation between “OMGitsLOCO” and “TheyLovingTc”, which later was re ⁶⁴⁷ ceived in evidence at trial as State’s Exhibits 91 and 92. 20 Detective Grimes explained, when viewing the “direct message” conversation, that those messages sent from the iPhone appeared within a green box on the right hand side of the screen, while the other party’s Twitter name was displayed across the top of the screen and his or her messages appeared in a white box on the left hand side of the screen. In the conversation depicted in Exhibits 91 and 92, “OMGitsLOCO” references a “shooting”, the need to “avenge keon” and that “they should have neva fucked wit Y2C”, 21 to which “TheyLovingTc” agreed: 22 ⁶⁴⁸ @TheyLovingTc 5/17/12 8:53 PM Ite and tell them bitch ass n[****]s to come to the farm cuz I don’t feel safe shooting them right by the police station unless we got the car □ 5/17/12 9:09 PM |-1 They not gone come we gone try but if not we gone do what we do 5/17/12 9:11 PM Alright say no more we not goin out like that □ 5/17/12 9:23 PM | | That’s what I’m saying 5/17/12 9:25 PM Yeah man T don’t care nomore. I’m just now starting to becomes a | | real n[***]a. We gon avenge keon. 5/17/12 10:12 PM | | hell yeah. 5/17/12 10:16 PM I stalled to fall off but ya boi Is back and (hey should have neva fucked wit Y2C bra it’s game ova □ ⁶⁴⁹ The trial judge determined that State’s Exhibits 91 and 92 were properly authenticated, because, along with the proffer of Detective Grimes’s testimony, there was independent verification of the Twitter account: THE COURT: Right.

Okay so last night an issue arose with respect to the testimony of Jesse Grimes, the State’s expert, who was expected to testify as to the identity of the sender of a number of tweets. * * * We heard yesterday that Jesse Grimes was able to make a determination through computer software. The defense acknowledges that they knew what the conclusion was, but not the methodology. We also have independent verification of the identification of the identity of the Twitter account, Jahmil T[.][ 23 ] testified that “Oh my God, it’s Loco” [phonetic sp], is Foulke’s[ 24 ] Twitter name.[ 25 ] Defense further argues as to the lack of identification of the sender. Reviewing the cases of Dickens and Griffin I’m satisfied the State has properly laid the foundation for authentication of these Tweets. ⁶⁵⁰ Detective Grimes subsequently testified, consistent with the State’s proffer, that he was able to access “the contacts, the call logs, ... images, ... videos, [and] Twitter chats” on the iPhone.

Detective Grimes identified State’s Exhibits 91 and 92 as screenshots displaying the “direct message” conversation. The Detective further explained that, using forensic software, he was able to compile those conversations into a separate report which identified that the “direct messages” sent from the phone were authored by “OMGitsLOCO” and that the phone received messages from “TheyLovingTc”. 26 The public “tweets” recovered from the Android phone recovered from Harris’s person also were received in evidence as State’s Exhibits 88 and 89. State’s Exhibit 88, with the timestamp of May 17, 2012, stated that things would “get real tomorrow” and was accompanied by the same profile photo that had been identified as Harris’s: I I TcxTOSA @TheyLo vingT c Shit fuma get real tomorrow 10:14 PM- 17 May 12 State’s Exhibit 89, also reflecting the date of May 17, 2012, contained the same profile photo and reiterated that the author was going “all in tomorrow”: | I Tex T®$A @TheyLovingT c Haha i cant do mm but sit back and laugh n[****]s on that grimy shit gotta sneak my yung n[***]a Fuck Probation im all in tomorrow 10:26 PM • 17 May 12 Immediately after the trial judge determined that the “direct messages” were admissible, State’s Exhibits 88 and 89, the “tweets” recovered from the Android phone, were admitted. The trial judge determined that State’s Exhibits 88 and 89 were properly authenticated, because they were authored ⁶⁵¹ at the same time as the “direct messages” that had just been authenticated and they contained content that would only have been created by “a few people”: THE COURT: Authenticated, thank you.

These are done at the same time the public tweet is just after the direct message which ends with “we going to avenge Keon, hell yeah,” that’s at 10:12. And a statement made at 10, six— okay. He must be on two phones or flipping back and forth, I don’t know how that works, at 10:14 he says, “finally get real tomorrow,” that — and the “hell yeah” to “we going to avenge keon” is at 10:12. And then the “I’m all in tomorrow” is at 10:26.

Also, we have pictures of the defendant in the tweet as his tag — I don’t know these technical terms but it’s his picture. He’s been identified by Jahmil T[.] as having the tag name, or whatever you call it, on Twitter as “They Loving it TC.” So I think they’re properly authenticated by their content and that there were only a few people that would be having the conversation that was depicted on these tweets. So these are coming in. Harris was convicted of first degree assault and the use of a handgun in the commission of a crime of violence, for which he was sentenced to twenty years’ imprisonment.

Harris noted a timely appeal to the Court of Special Appeals but before our intermediate appellate court issued an opinion, 27 we granted certimuri in Sublet v. State, and Harris petitioned this Court to issue a Writ of Certiorari, which we granted, to answer the following questions: 1. Are one-to-one communications sent through a social networking website, such as direct tweets sent through Twitter, governed by the authentication standard announced in Griffin v. State, 419 Md. 343 [ 19 A.3d 415 ] (2011), or are they excepted from that standard, as announced in footnote ⁶⁵² 13 of the Griffin opinion, because they are like emails, texts, and instant messages? a. Should there remain a difference in assessing the authentication of evidence derived from social networking websites on the one hand and emails/texts/instant messages on the other, given the identity-separation concern attendant to all those forms of communication? 2. If the standard in Griffin applies, did the court abuse its discretion in admitting Twitter messages purportedly written by petitioner when no extrinsic evidence connected petitioner to the account or the authorship of the messages?

Harris v. State, 440 Md. 114 , 99 A.3d 778 (2014). Monge-Martinez v. State Carlos Alberto Monge-Martinez, the third Petitioner herein, was charged with attempted second degree murder and two counts each of first degree assault, second degree assault and reckless endangerment arising out of an April 23, 2012 altercation with a former girlfriend, Dorothy Ana Santa Maria, during which Ms. Santa Maria was stabbed. According to the State’s theory of the case, Monge-Martinez had intentionally instigated the fight, while Monge-Martinez posited that he was defending himself from Ms. Santa Maria. The State sought to introduce Facebook messages 28 received by Ms. Santa Maria that had allegedly been sent by Monge-Martinez reflecting that he had expressed remorse for his actions. 29 During Ms. Santa Maria’s testimony, the Assistant State’s Attorney elicited that she had received Facebook messages, ostensibly from Monge-Martinez.

The first Facebook mes ⁶⁵³ sage, State’s Exhibit 19, indicated that it had been sent at 4:21 p.m. and was an apology for getting “carried away by the anger”: Carlos Monge Monday, April 23 at 4:21 PM Sent from Web I wish and one day you forgive me. I got carried away by the anger and your deceit. You didn’t lie yesterday, you’ve been ridiculing me for day and you know it’s the truth. The second Faeebook message, State’s Exhibit 20, showed a date of April 23, in which Monge-Martinez allegedly stated that he “no longer want[s] to live with this”: Carlos Monge Monday, April 23 at [glare 30 ] PM Sent from Web I do not know what I will do I no longer want to live with this.

The third Faeebook message, State’s Exhibit 21, indicated that it was received on April 23 at 4:36 PM and admonished Ms. Santa Maria for “deciev[ing]” and “disconcerting]” the author of the message: Carlos Monge Monday, April 23 at 4:36 PM Sent from Web I love you but knowing how you deceived me disconcerted me. I hope you are doing well. I love you. When the State sought to introduce State’s Exhibits 19, 20 and 21, which depicted screenshots of Ms. Santa Maria’s phone displaying the messages, Monge-Martinez’s attorney objected to their admission on the basis that “the State will not be able to show any evidence that’s referring to the incident on the 23rd.” The trial court permitted the Assistant ⁶⁵⁴ State’s Attorney to question Ms. Santa Maria to establish the authenticity of the Facebook messages.

Ms. Santa Maria, thereafter, identified the exhibits as “Facebook messages that [Monge-Martinez] wrote me”, which she had received while in the hospital being treated for her injury: [STATE’S ATTORNEY]: Back to when you were in the hospital, you received a couple Facebook messages from [Monge-Martinez]; is that correct? [MS. SANTA MARIA]: Yes, ma’am. [STATE’S ATTORNEY]: Showing you State’s Exhibits 19, 20 and 21, you recognize State’s 19, 20 and 21? [MS. SANTA MARIA]: Yes, ma’am. [STATE’S ATTORNEY]: What are they? [MS. SANTA MARIA]: They’re Facebook messages that he wrote me.

According to Ms. Santa Maria, the Exhibits were screenshots of her phone displaying the Facebook messages, which the trial judge admitted in evidence over objection: [STATE’S ATTORNEY]: Let me ask it this way. Was there a photograph taken of your phone of the Facebook messages? [MS. SANTA MARIA]: Yes. [STATE’S ATTORNEY]: And is State’s 19, 20 and 21 a photograph of your screen from northbound? [MS. SANTA MARIA]: Yes, ma’am. [STATE’S ATTORNEY]: State enters 19, 20 and 21. [ATTORNEY FOR MONGE-MARTINEZ]: Please note our objection.

THE COURT: Over objection, admitted. Monge-Martinez was ultimately found guilty of second degree assault and openly carrying a dangerous weapon with the intent to injure. He was sentenced to ten years’ imprisonment for the assault and three years’ imprisonment for carrying a dangerous weapon, to run concurrently. ⁶⁵⁵ The Court of Special Appeals, in an unreported opinion, affirmed the conviction and sentence, having found no error in the admission of the Facebook messages. 31 We granted Monge-Martinez’s Petition for Certiorari to answer the following questions: 1. Are one-to-one communications sent through a social networking website, such as direct messages sent through Facebook, governed by the authentication standard announced in Griffin v. State, 419 Md. 343 [ 19 A.3d 415 ] (2011), or are they excepted from that standard, under footnote 13 of the Griffin opinion, because they are like emails, texts, and instant messages? a.

Should there remain a difference in assessing the authentication of evidence derived from social networking websites on the one hand and emails/texts/instant messages on the other, given the fabrication concerns attendant to all those forms of communication? 2. Did the trial court abuse its discretion in admitting supposed Facebook messages purportedly written by Petitioner, where the recipient testified only that Petitioner “was on my account” and that photographs of the messages were taken? 3. Did the Court of Special Appeals err in deeming harmless any error? Monge-Martinez v. State, 440 Md. 114 , 99 A.3d 778 (2014).

Authentication Authentication has been defined as “the act of proving that something (as a document) is true or genuine, especially] so that it may be admitted as evidence”. Black’s Law Dictionary 157 (10th ed. 2014). Authentication of a matter prior to its ⁶⁵⁶ admission “is not an[ ] artificial principal of evidence, but an inherent logical necessity”, (7 J. Wigmore, Evidence § 2129 (Chadbourn Rev. 1978)), and is integral to establishing its relevancy. See 2 McCormick on Evidence § 221 (7th ed. 2018) (“The proponent’s assertion as to why the writing is relevant determines what the proponent claims the writing is, typically that it has some specific connection to a person or organization, whether through authorship or some other relation.

It is this connection that must be proved to authenticate the writing.”). The role of judge as “gatekeeper” is essential to authentication, because of jurors’ tendency, “when a corporal object is produced as proving something, to assume, on sight of the object, all else that is implied in the case about it”, for which Wigmore provided the following example: [I]t is easy for a jury, when witnesses speak of a horse being stolen from Doe by Roe, to understand, when Doe is proved to have lost the horse, that it still remains to be proved that Roe took it; the missing element can clearly be kept separate as an additional requirement. But if the witness to the theft were to have a horse brought into the courtroom, and to point it out triumphantly, “If you doubt me, there is the very horse!”, this would go a great way to persuade the jury of the rest of his assertion and to ignore the weakness of his evidence of Roe’s complicity. The sight of the horse, corroborating in the flesh, as it were, a part of the witness’ testimony, tends to verify the remainder.

Wigmore, supra, § 2129. We adopted Maryland Rule 5-901, 32 as well as the rest of the Maryland Rules of Evidence, in 1993, to codify our com ⁶⁵⁷ mon law of evidence, (see 21:1 Maryland Register P-1 (Jan. 7, 1994)), which was based upon Federal Rule of Evidence 901, 33 (see Court of Appeals of Maryland, Rules Order, 21:1 Mary ⁶⁵⁸ land, Register PI). “[W]e take into account common law principles on the same subject matter when interpreting the rules of evidence set forth in Title 5.” Brooks v. State, 439 Md. 698, 719 , 98 A.3d 236, 248 (2014). As such, the opportunities and challenges of determining authorship of social networking communications and postings are best understood in the historical context of authentication. See Ira P. Robbins, Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence, 13 Minn.

J.L. Sci. & Tech. 1, 16-17 (discussing authentication in terms of verifying authorship). With respect to the authentication of the authorship of writings, 34 they “purport on their face to be of a certain person’s authorship” and, therefore, various approaches have developed “for separating the external evidence of authorship from the mere existence of the purporting document.” Wig-more, supra, § 2130. The most straightforward approach to authenticating a writing is to ask an individual with personal knowledge about the document whether the matter was what it purported to be. E.g.

Matthews v. J.B. Colt Co., 145 Md. 667, 672 , 125 A. 840, 841 (1924) (testimony of witness that he saw defendant sign contract was sufficient to warrant its admission). Familiarity with the purported author’s signature also has been a basis for authentication, provided that such familiarity was proven prior to authentication. Smith v. Walton, 8 Gill 77, 77 (Md.1849) (“A witness who has seen a party write, or who has corresponded with him, is qualified to speak with respect to the genuineness of his signature.”). 35 In other ⁶⁵⁹ circumstances, comparison to a known exemplar may be accomplished through expert testimony or within the confines of the jury room. See, e.g., Hoover v. Hoover, 187 Md. 646, 650 , 51 A.2d 166, 168 (1947) (“A bank official, whose business it was to know handwriting, testified as an expert that in his opinion the writing on the disputed note, and the admitted writing of [the alleged author] on the autographed note, were the same.”); Haile v. Dinnis, 184 Md. 144, 153-54 , 40 A.2d 363, 367 (1944) (jury compared records against previously admitted exemplars to determine if they were authentic).

In the absence of known exemplars, authentication of a wilting also could be obtained were the contents or subject matter of the writing to “contain circumstantial evidence indicating the identity of its author”, (5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 901.04[3][a] (Joseph M. McLaughlin ed., Matthew Bender 2d ed. 2015)), by, for example, containing information known only to a chosen few. See, e.g., United States v. Sutton, 426 F.2d 1202 , 1208 n. 53 (D.C.Cir.1969). Authentication or proof of authorship of a writing also could be accomplished under the “reply letter doctrine”, (6A Lynn McLain, Maryland Evidence — State and Federal § 901:5(c) (3d ed. 2013)), which instructed “that where a letter ha[d] been received by the due course of mail in answer to a prior letter of the receiver, -with the name of the addressee or such prior letter signed thereto, a presumption [arose] that it [wa]s the letter of the person whose name [wa]s signed thereto.” Am. Bonding Co. of Baltimore v. Ensey, 105 Md. 211 , 65 A. 921, 925 (1907) (internal quotation marks omitted).

As it has been a challenge to authenticate writings, especially in the early period of the Republic, 36 so has been authentication of social networking websites and posts, because tradi ⁶⁶⁰ tional opportunities for authentication are reduced by the lack of handwriting, the absence of a physical location of the document and the inherent anonymity provided by posting on websites. See generally Allison Stiles, Everyone’s A Critic: Defamation and Anonymity on the Internet, 2002 Duke L. & Tech. Rev. 0004 (2002), available at http://scholarship.law. duke.edu/cgi/viewcontent.cgi?article=1045¿context=dltr (last visited Apr. 20, 2015). Social networks, which “invite users to establish online profiles through which they can share information”, (Ossian, supra, § 1:2.1), require the user to register “using a valid email address; first and last names; personal password; country; postal code; date of birth ...; and gender”, (John G. Browing, The Lawyer’s Guide to Social Networking 19 (2010)).

Although biographical information is required to establish a social networking profile, “there doesn’t appear to be a way to validate such information before a page can be created”. Id. On a social networking website, users may “post their own personal information, photographs and videos” and, from their profiles, “they can send and receive messages to and from others”. 2 McCormick, supra, § 227. These messages may be public or private and visible to participants in the conversation.

Social networking material provides the fodder for civil disputes and defenses, as well as proof of violations of criminal laws. See, e.g., United States v. Elonis, 897 F.Supp.2d 335, 338 (E.D.Pa.2012), aff'd, 730 F.3d 321 (3d Cir.2013) (Defendant violated federal law prohibiting transmitting interstate communications containing any threat to injure a person by posting threatening comments on Facebook); State v. Buhl, 152 Conn.App. 140 , 100 A.3d 6 , 8-9 (2014) (Facebook entries received in evidence to show the defendant had harassed the victim); Moore v. State, 295 Ga. 709 , 763 S.E.2d 670, 674 (2014) (Defendant’s Facebook posts used to establish guilt for his murder conviction); Commonwealth v. Foster F., 86 Mass. App.Ct. 734, 20 N.E.3d 967 , 970-71 (2014) (Facebook messages between juvenile defendant and victim received in evi ⁶⁶¹ dence); State v. McKinley, 234 W.Va. 143 , 764 S.E.2d 303, 326 (2014) (Facebook evidence received during murder trial). Authentication of social networking communications and postings has been and continues to be a significant issue.

See Ossian, supra, § 9:7.2 (“The second evidentiary requirement [after relevance] — and the one receiving the most attention— is authentication.”); Griffin, 419 Md. at 352 , 19 A.3d at 421 (“The identity of who generated the profile may be confounding, because ‘a person observing the online profile of a user with whom the observer is unacquainted has no idea whether the profile is legitimate.’ ”), quoting Nathan Petrashek, Comment, The Fourth Amendment and the Brave New World of Online Social Networking, 93 Marq. L. Rev. 1495 , 1499 n.16 (2009-2010). Authentication of a profile on a social networking website depends upon whether the profile was created by its purported owner and/or whether a “cracker” 37 had accessed the website. See Ossian, supra, § 9:7.2 (noting that a major component of the authentication of social networking evidence is “access and control of the social media information”); Lawrence Morales II, Social Media Evidence: ‘What You Post or Tweet Can and Will Be Used Against You in a Court of Law, ” 60 The Advoc.

(Texas) 32, 36 (2012) (“It is common for witnesses faced with an incriminating statement on their social media profile to claim that it must have been written by someone else, which they claim is possible because other people know their social media password or use their computer.... These unique characteristics of social media websites present authentication challenges for courts and litigants.”). Unauthorized access of a profile can occur even without password sharing when an individual remains logged in to his or her account through their cell phone or computer and leaves them unattended, thereby allowing third parties access to the ⁶⁶² profile. See State v. Eleck, 130 Conn.App. 632 , 23 A.3d 818, 822 (2011), aff'd on other grounds, 314 Conn. 123 , 100 A.3d 817 (2014) (“[Ajccount holders frequently remain logged in to their accounts while leaving their computers and cell phones unattended.”).

Individuals may also obtain unauthorized access to an account by “guessing or finding ... a valid password”. Michael Lee et al., Electronic Commerce, Hackers, and the Search for Legitimacy: A Regulatory Proposal, 14 Berkeley Tech. L.J. 839 , 850 (1999); see generally id. at 846-50 (presenting an overview of different methods of hacking). In Griffin, 419 Md. at 346-47 , 19 A.3d at 417 , we had our first occasion to address authentication of social networking evidence.

The admission in evidence of a screenshot of a MySpace page of the girlfriend of Griffin, who was on trial for murder, was in issue. The printout of the “screenshot” had been made by the lead investigator of the case, who testified that he had printed it from his computer. Jessica Barber, the girlfriend, had been on the stand as a witness, but had not been questioned regarding her ownership of the profile. The screenshot was relevant, the State proffered, because it showed that Ms. Barber had, prior to trial, threatened a witness to the murder.

The screenshot contained a picture “of a person that look[ed] like Jessica Barber”, (id. at 349, 19 A.3d at 419 ), and described a twenty-three year-old female from Port Deposit, listing her birthday as “10/02/1983”, as well as the statement: FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!! Id. at 348 , 19 A.3d at 418 .

We recognized in Griffin that authentication of social networking evidence can pose significant problems, “because anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password”. Id. at 352 , 19 A.3d at 421 . We rejected the mere printout of the screen-shot in issue as authentic, because the lead investigator, who ⁶⁶³ had created the document, lacked any knowledge about ownership of or who created the profile. We suggested, however, under Rules 5 — 901(b)(1) and (4), three non-exclusive means of authentication of ownership of such websites.

The first and most obvious method for authentication, we said, “would be to ask the purported creator if she indeed created the profile and also if she added the posting in question”. Id. at 363 , 19 A.3d at 427 . The second approach we discussed was to “search the computer of the person who allegedly created the profile and posting and examine the computer’s internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.” Id. The third of the non-exhaustive means of authentication we suggested was to “obtain information directly from the social networking website”, which would link together the profile and the entry to the person, or persons, who had created them.

Id. at 364 , 19 A.3d at 428 . 38 In the period since Griffin had been decided, cases in which authentication of social networking websites and postings has been addressed have proliferated. 39 In the shadow of Griffin , ⁶⁶⁴ we today are asked to cull the various cases to discern a standard for authentication of social networking evidence. In so doing, we find succor in the standard articulated by the United States Court of Appeals for the Second Circuit in United States v. Vayner, 769 F.3d 125 (2d Cir.2014), which, on facts analogous to those in Griffin , reached a similar conclusion. In Vayner , Aliaksandr Zhyltsou was charged with the transfer of a false identification document. Id. at 127 .

The government’s primary witness against Zhyltsou, Vladyslav Timku, testified that he “was familiar with Zhyltsou’s work as a forger because he had previously paid Zhyltsou to create false” documents. Id. According to Timku, Zhyltsou had sent him the completed forgery via e-mail from the address, “[email protected]”. Id.

However, “near the conclusion of the prosecution’s case, only Timku’s testimony directly connected Zhyltsou with the [e-mail] address”. Id. at 127-28 . The government, before resting, indicated to the district court that it planned to call an unexpected final witness, Special Agent Robert Cline of the State Department’s Diplomatic Security Service. Id. at 128 .

According to the government, it would “introduce a printout of a web page that the government claimed to be Zhyltsou’s profile onVK.com (‘VK’), ⁶⁶⁵ which Special Agent Cline described as ‘the Russian equivalent of Facebook.’ ” Id. Zhyltsou objected to the admissibility of the printout on the grounds that it had not been properly authenticated under Federal Rule of Evidence 901. The district court overruled Zhyltsou’s objection, finding that the VK page was, in fact, Zhyltsou’s VK page and there was “ ‘no question about the authenticity of th[e] document so far as it’s coming off the Internet now.’ ” Id. As summarized in the opinion of the Second Circuit, Special Agent Cline then testified with respect to the VK page: During his testimony, Special Agent Cline identified the printout as being from “the Russian equivalent of Face-book.” He noted to the jury that the page purported to be the profile of “Alexander Zhiltsov” (an alternate spelling of Zhyltsou’s name), and that it contained a photograph of Zhyltsou.

Importantly for the government’s case, Special Agent Cline next pointed out that under the heading, “Contact Information,” the profile listed “Azmadeuz” as “Zhiltsov’s” address on Skype (a service that Special Agent Cline described as a “voiceover IP provider”). The web page also reflected that “Zhiltsov” worked at a company called “Martex International” and at an Internet café called “Cyber Heaven,” which corresponded with Timku’s earlier testimony that Zhyltsou and Timku had both worked for those entities. On cross-examination, Special Agent Cline admitted that he had only a “cursory familiarity” with VK, had never used the site except to view this single page, and did not know whether any identity verification was required in order for a user to create an account on the site. Id. at 128-29 .

The Second Circuit recognized that, initially, authentication of the VK page was in issue: “The requirement of authentication is ... a condition precedent to admitting evidence.” [United States v.] Sliker, 751 F.2d [477,] 497 [ (2d Cir.1984) ]; see also United States v. Maldonado-Rivera, 922 F.2d 934, 957 (2d Cir.1990) (“In ⁶⁶⁶ general, a document may not be admitted into evidence unless it is shown to be genuine.”). Rule 901 of the Federal Rules of Evidence governs the authentication of evidence and provides, in pertinent part: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a). Id. at 129. The Second Circuit instructed that, “ ‘[t]his requirement is satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.’ ” Id. at 129-30, quoting United States v. Pluta, 176 F.3d 43, 49 (2d Cir.1999) (internal quotation marks omitted).

Thereafter, the jury ultimately is left to make the “determination as to whether the evidence is, in fact, what its proponent claims”. Id. at 130 , citing Sliker, 751 F.2d at 499. Under the standard articulated in Vayner , the preliminary determination of authentication must be made by the trial judge and “depends upon a context-specific determination whether the proof advanced is sufficient to support a finding that the item in question is what its proponent claims it to be”, (id.), based upon “sufficient proof ... so that a reasonable juror could find in favor of authenticity or identification”, (id. quoting Pluto, 176 F.3d at 49 ): Rule 901 “does not definitively establish the nature or quantum of proof that is required” preliminarily to authenticate an item of evidence. [Sliker; 751 F.2d] at 499. “The type and quantum of evidence” required is “related to the purpose for which the evidence is offered,” id. at 488, and depends upon a context-specific determination whether the proof advanced is sufficient to support a finding that the item in question is what its proponent claims it to be. We have said that “[t]he bar for authentication of evidence is not particularly high.” United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir.2007).

But even though “[t]he proponent need not rule out all possibilities inconsistent with authenticity, or ... prove beyond any doubt that the evidence is what it purports to be,” id. (internal quotation marks omitted), ⁶⁶⁷ there must nonetheless be at least “sufficient proof ... so that a reasonable juror could find in favor of authenticity or identification,” Pluta, 176 F.3d at 49 (internal quotation marks omitted). The “proof of authentication may be direct or circumstantial.” United States v. Al-Moayad, 545 F.3d 139, 172 (2d Cir.2008). The simplest (and likely most common) form of authentication is through “the testimony of a ‘witness with knowledge’ that ‘a matter is what it is claimed to be.’ ” United States v. Rommy, 506 F.3d 108, 138 (2d Cir.2007) (quoting Fed.R.Evid. 901(b)(1) (pre-2011 amendments)).

This is by no means exclusive, however: Rule 901 provides several examples of proper authentication techniques in different contexts, see Fed.R.Evid. 901(b), and the advisory committee’s note states that these are “not intended as an exclusive enumeration of allowable methods but are meant to guide and suggest, leaving room for growth and development in this area of the law,” Fed.R.Evid. 901 advisory committee’s note (Note to Subdivision (b)). Id. (footnote omitted). Illustration of authentication techniques, according to the Second Circuit, could be derived from documents: Some examples illustrate the point.

For instance, we have said that a document can be authenticated by “distinctive characteristics of the document itself, such as its ‘[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances.’ ” Maldonado-Rivera, 922 F.2d at 957 (alteration in original) (quoting Fed.R.Evid. 901(b)(4) (pre-2011 amendments)); see also Sliker, 751 F.2d at 488 (contents of alleged bank records, in conjunction with their seizure at purported bank office, provided sufficient proof of their connection to allegedly sham bank). Or, where the evidence in question is a recorded call, we have said that “[wjhile a mere assertion of identity by a person talking on the telephone is not in itself sufficient to authenticate that person’s identity, some additional evidence, which need not fall into any set pattern, may provide the necessary foundation.” [United States v.] Dhinsa, 243 F.3d [635,] 658-59 ⁶⁶⁸ [ (2d Cir.2001) ] (brackets and internal quotation marks omitted); see also Sliker, 751 F.2d at 499 (voice on tape recording was sufficiently authenticated as defendant’s based on