State v. Allcock, 2020 VT 60
By: Ember Tilton 

Christina Marie Allcock appealed her convictions for aggravated assault on a police officer, simple assault on a police officer, and impeding a police officer.  Her appeal focuses on the trial court’s admission of some DMs (as the kids these day call them, but what we called PMs or what even older folks used to call IMs, also known as and more specifically Facebook messages).  

SCOV reviews the trial evidence in the light most favorable to the State.  They find that in March of 2015, police went to Defendant’s home and found a man who had been stabbed.  Defendant, her boyfriend, her parents, and her adult son were there.  A group of them went outside to sit in a car while the police had a look around.  The police decided they needed to speak with Defendant’s son.  Defendant tried to prevent this and in the process slapped an officer, clawed him, held a lit lighter against his hand, and also punched him in his mouth.  The officers then arrested her.  At trial, the jury found her guilty on all counts.  She was sentenced to eighteen months to six years. She appealed.

The issue here is that during the trial the court permitted the prosecution to show the jury Facebook messages purporting to be from her, and saying incriminating things like, “I didn’t hit the cop either . . . I did take a lighter to his hand after he assaulted me . . . But it was fine cause he tried pulling me around by my hair after.”  Defendant claims that the authentication (process by which evidence is found to be reliable enough to present to the jury) was insufficient and in error.  SCOV notes that other states have special rules for interweb evidence, but Vermont will use the same standards as for other evidence.  Here the police served a warrant on Facebook and Facebook sent them information from an account with a user named Christina Marie Allcock.  However, no one could really prove it was her account.  It looked like her pictures and the messages seemed to show that the writer had some details about the altercation that would only be known by people who were there. So . . .? Good enough?

SCOV applies the law, which says, authentication requires “evidence sufficient to support a finding that the matter in question is what its proponent claims.” The “proponent” is the party who asks to introduce the evidence.  SCOV recites a few cases from other states and jurisdictions and then does something quite exceptional.  SCOV actually likens social media to old fashioned media, and in my humble opinion it is an apt analogy.  SCOV says that just because a flyer posted on a wall in town says “this flyer was posted by Jane Doe” does not mean that it should be authenticated as a poster posted by Jane Doe.  Something more is needed before a trial court can conclude it is “reasonably certain” the evidence is what it is purported to be.  SCOV says the messages in this case were “not meaningfully distinguishable from the hypothetical flyer, and are thus inadmissible.”  The State argued that the account was named “Christina Allcock” and registered to “Christina Allcock” (as if that’s really different), that the recipient of the messages was under the impression they were from “Christina Allcock,” the police believed they were from “Christina Allcock,” and that the messages contained information about her case.   SCOV was not impressed and did not agree.  SCOV says that if the messages were Defendant’s, it wouldn’t be difficult at all to authenticate them.  For example, there was no attempt to link the account to Defendant’s IP address.  They could have shown pictures of defendant that were not in the public domain.  The fact that a document names its author is not good enough, says SCOV, otherwise fraud would be as easy as catching bass in Berlin Pond (ok, SCOV didn’t say that part – I did, and you better throw them back when they’re not in season).  Good news for Defendant, the most serious charge was overturned.

Since this situation may be repeated with other people and other facts, the majority seems to require more than a “Bubba was here” to authenticate a writing as belonging to a certain author. Also, the State could try the case again and admit the evidence properly, but that’s not something we can know since the State’s Facebook page is set to private and they won’t accept my friend requests. 🙁 

The other charges didn’t have to do with the lighter, or with the messages about the lighter, so those are affirmed.  

Defendant also raised an issue with the charging documents and an amendment that added the word “slapping” at trial.  SCOV dismisses this argument by reminding the defendant that she was on notice of the charges from the police report that included the word slapping, and the original document that said punching.  This late amendment did not create any unfairness according to SCOV. 

But wait there’s more.  Chief Justice Reiber, joined by Justice Eaton, dissents!  CJ Reiber agrees with the rest of the SCOV about the law but thinks that messages written with information specific to an incident and in the name of a person involved are enough to find reasonable certainty that they were authentic.  Though I think he’s wrong in principle (that’s no way to run a railroad), I think he’s being nagged by something very obvious: the sense that she wrote the messages. And this just doesn’t seem to sit right with our Chief Justice. Reversing would cause this case go back for a redo when it seems like nothing unjust happened with the introduction of these messages.