Business Records: Posts, Chats, and Texts

Several prior posts on this blog have addressed authenticating and admitting digital evidence like social media posts and text messages (see here, here, here, and here) and we've also previously covered the basic rules and requirements for using the business records hearsay exception (see here, here and here), but we've not yet explored the questions and issues that arise when those two topics collide. For example, if the state obtains a complete copy of a suspect's account records from Facebook, Twitter, or AT&T, including user-generated content such as messages, chats, texts, and posts, can that evidence be admitted as a business record? I recently had an opportunity to talk about digital evidence with prosecutors in several other states, and there are opposing views in different jurisdictions about the correct answer to this question. This post looks at the conflicting interpretations, the North Carolina guidance we have so far, and an interesting alternative approach. Haven't We Covered This Before? Surprisingly, no. The earlier posts about text messages and social media focused on evidence that was either found online or stored on a local device, so the evidence was just authenticated under Rule 901 and then admitted under another hearsay exception (usually as a statement of a party opponent). Based on the case law that seems to be the more common scenario, but it's certainly not the only one. After all, messages get deleted, hard drives fail, phones go missing, and passwords expire. In those situations, investigators may choose to send a search [...]