“Unfriending” On Facebook – An Act That Is OK To Prove Guilt As An Accomplice To Attempted Robbery
So says the Maryland Court of Appeals in State v. Sample
By Robert C. Bonsib, Esq.
Maryland & Federal Criminal Defense Lawyer – Call me to discuss your case
[email protected] (email)
The Maryland Court of Appeals (“COA”) approved the use of the act of “unfriending” on Facebook as evidence of Hayes Sample’s involvement in an attempted robbery.
Sample and his alleged co-conspirator, Claude Mayo, were accused of attempting to commit a robbery of a liquor store in which Mayo was shot and killed by the liquor store clerk who, unfortunately for Mayo, also had a gun.
When detectives searched Sample’s Facebook social media page they discovered that Sample “unfriended” Mayo after the robbery. It was the only one of Sample’s Facebook friends that was “unfriended” in the seventeen-day period following the robbery. The attempted robbery occurred on December 7th at 6:50 pm. On the evening of December 8th the “unfriending” occurred.
Sample argued that there was insufficient evidence for a reasonable juror to find that the Facebook profile at issue belonged to Sample and that Sample used that Facebook profile to “unfriend” Mayo.
The COA first reminded that the standard of proof for authenticating social media is the preponderance of evidence standard – i.e. there must be sufficient circumstance evidence for a reasonable juror to find it is more likely than not that the social media evidence is what it is purported to be.
Link to full opinion –
Of particular significance the COA noted that the circumstances present in this case included the fact that the “unfriending” occurred close in time to the robbery and that Sample had a motive to distance himself from Mayo – specifically he had denied knowing Mayo when he was interviewed by detectives. Additionally, during the seventeen-day period after the attempted robbery, of the 175 Facebook profiles listed as friends on Sample’s Facebook profile, the Mayo profile was the only one that was “unfriended.”
The COA reversed the decision of the Maryland Court of Special Appeals which had concluded that the trial court erred in admitting the “unfriending” evidence reasoning that it is was possible that someone other than Sample had used the Facebook profile to do the “unfriending.”
The two primary issues in the Sample case were: (i) was there sufficient evidence to authenticate a Facebook profile as one belonging to Sample since the actual profile name was “SoLo Haze” and was there sufficient evidence to authenticate the Facebook profile “claude.mayo.5” as one that belonged to Mayo and (ii) was there sufficient evidence for the jury to conclude that Sample was the individual who, in fact, “unfriended” Mayo.
The COA reviewed the circumstantial evidence that connected Sample to the “SoLo Haze” Facebook profile and “claude.mayo.5” to Mayo. A review of the posts, pictures and other information located in each Facebook profile provided strong circumstantial evidence as to the ownership of each profile.
The COA also concluded that there was sufficient evidence to conclude that Sample was the one who “unfriended” Mayo, noting that Mayo was the only one “unfriended” in the two and one-half weeks after the attempted robbery. The “unfriending” occurred the day after the attempted robbery and Sample had the motive to sever ties with Mayo after the attempted robbery – particularly since there was evidence that Sample was the surviving attempted robber, i.e. Mayo’s accomplice in the attempted robbery. This other evidence included surveillance video that showed the two men walking together about fourteen minutes before the crime, cell phone records showed a phone call from Sample to Mayo an hour before the attempted robbery and during Sample’s interview with detectives he denied knowing Mayo.
The COA concluded that “[t]hese circumstances indicate that Sample was not a mere bystander or potential eyewitness to the attempted armed robbery. To the contrary, if believed, the State’s argument …demonstrated that Sample was Mayo’s accomplice, and had reason to distance himself from Mayo by unfriending him on Facebook.”
With respect to the possibility that someone other than Sample “unfriended” Mayo’s Facebook profile, the COA stated that “[t]he State was not required to eliminate all possibiities that were inconsistent with authenticity, or prove beyond any question that Sample was the one who used the SoLo Haze Facebook profile to unfriend the claude.mayo.5 Fracebook profile. Instead, the State needed to prove only that there was sufficient evidence for a reasonable juror to find by a preponderance of the evidence, i.e., that it was more likely than not, that Sample was responsible for the unfriending.”
The Sample opinion is just one more instance of the courts attempting to evaluate the proper place for social media evidence in the courtroom. The challenge is to balance the probative value of arguably relevant social media evidence against the need to be cautious about the use of social media evidence when such evidence must be considered with the understanding that the internet and social media evidence is not always what it appears to be.