The Harrison decision will undoubtably guide lower courts on the ever-expanding use of social media recordings introduced as evidence at trial. And after Harrison, it is hard to think of a circumstance where social media evidence, particularly videos, could not be properly authenticated. While the Alabama Court of Criminal Appeals addressed Facebook Live videos that the testifying witness viewed on what he believed to be Harrison’s Facebook page, there is no reason to think that the now relaxed approach to authentication of social media recorded evidence would not apply to other highly used platforms like YouTube, TikTok, Instagram, Snapchat, Twitter, Vimeo, WeChat and the like.
Before Harrison, no published appellate decision had addressed just how these types of videos posted to social media or online needed to be authenticated. And even though proper authentication is generally a low threshold for the proponent of the evidence to meet, prior to Harrison, video and audio-recorded evidence fell into two separate categories for authentication with differing requirements. The pictorial-communication theory of authentication would apply when the testifying witness observed the recorded events and could testify to their accuracy. But if the proponent of the evidence didn’t have a witness who had observed the recorded events, then the “silent witness” theory applied and required a seven-part authentication standard be met as outlined by Voudrie v. State, 387 So. 2d 248 (Ala. Crim. App. 1980).
Here, Harrison challenged the State’s ability to authenticate two Facebook Live videos through the victim’s brother who would testify that he viewed the videos on Harrison’s Facebook page. Although Harrison argued that the videos would have to meet the seven-factor Voudrie authentication test, the Court of Criminal Appeals disagreed holding:
Because the Alabama Supreme Court has indicated that the Voudrie test is not necessarily an inflexible, hard-and-fast standard that automatically applies to every video, and given the unique and ubiquitous nature of social-media videos, we hold that the failure to satisfy each and every element of the Voudrie test does not prevent the State from introducing such evidence.
(pg. 19.)
To reach this conclusion, the Court of Criminal Appeals relied on decisions from numerous other jurisdictions, which have allowed the introduction of social media evidence under differing circumstances and sometimes without any showing of how the video was recorded, the device used, when it was recorded, or who completed the recording. Our Court now indicates that these questions go to the weight of the evidence and not its admissibility.
Since the “silent-witness” theory of authentication would essentially be impossible to meet when dealing with video evidence pulled from social media and similar sites, it does not strictly apply to this type of evidence. The result? Videos posed on social media and similar websites are likely coming in at trial: “[I]n accordance with Rule 901 and its low threshold for authentication, the State need only present evidence “sufficient to support a finding that the matter in question is what its proponent claims.” Rule 901(a).” (pg. 26.) So, although the Court makes mention of a relaxed application of the Voudrie test, the result in Harrison with its reference to the low threshold of Rule 901(a), Ala. R. Evid., doesn’t seem to leave much place for the Voudrie factors moving forward.
