When litigating cases in court, lawyers must follow formal rules of evidence. In 1965, Chief Justice Earl Warren of the United States Supreme Court started developing what would eventually become formal Rules of Evidence. The underlying principles behind these rules, however, had been tested for centuries. With the 21st century come new tests. For example, how do the square pegs of Facebook communications fit into the round holes of the Rules of Evidence? The Colorado Court of Appeals just answered that question. Although a criminal case, the decision offers guidance to any litigant seeking to admit social media posts at trial.

On Feb. 26, 2015, in People v. Glover, the Colorado Court of Appeals upheld a trial court’s ruling to allow a prosecutor to admit a defendant’s Facebook communications, including his status updates, wall posts, and chats, but held that the trial court had admitted them in the wrong way. The trial court admitted the records as what are called “self-authenticating business records” under Rules 902(11) and 803(6) of the Colorado Rules of Evidence (“CRE”). In other words, the trial court entered them as if they were the business records of Facebook. On review, the Court of Appeals held that those were the wrong rules for analyzing the authenticity of social media records because, while a user’s communications are captured in Facebook’s records, they are themselves not created or relied upon by Facebook.