How Do You Put a Website into Evidence?
Someone came to me this week with an evidence question. I write a lot about evidence, in part because it comes up with some frequency at trial and in part because the law of evidence is an amusing and deeply human tangle of dubious logic and ancient superstitions that is simultaneously a socially critical tool for the discovery of truth and a parlor game with satisfying strategy and counterplay.
The question that I was asked was how to admit the contents of a public website at trial. Most of the time that I’ve faced the issue the website in question wasn’t terribly contentious and I was able to resolve the matter by stipulation. This usually comes up when negotiating exhibit list objections with the other side before trial. But websites are a frequent source of potential evidence and it’s worth working through the right strategy to get them admitted with the least hassle and potential failure.
Before we talk about websites specifically, it’s worth zooming out and considering what the challenges are in admitting any piece of documentary evidence. The three main hurdles for any written or graphic evidence are authenticity, relevance/prejudice, and hearsay. Or more simply:
1. Is the document what it purports to be?
2. Is the document something a jury could rely upon in deciding the case in front of it?
3. Does the document violate the rule against hearsay?
There are exceptions and special cases, but generally speaking if you clear these three hurdles you can make it to the finish line and have your document admitted into evidence.
1. Authenticity
In Federal Court, authenticity is controlled by Fed. R. Evid. 901(a). That rule provides that “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”
While ultimately questions of authenticity are reserved for the jury, Fed. R. Evid. 104 tasks the trial court with making an initial determination that the party offering the evidence has provided sufficient background facts to permit a jury to conclude that the evidence is authentic. The theory here is that jurors should decide close calls but should not be tempted with transparent forgeries or totally unsubstantiated pieces of paper in the hopes that something moves them.
How do you show that a website is authentic? In most cases this can be done by the user of the website – that is, the person who accessed it – and does not necessarily require the author. [1] The user needs to be able to establish that he or she typed in the address indicated on the document and either printed or screen captured the result in a manner that reliably depicts what is shown on the computer screen. [2] This attestation can be done by a paralegal, but services do exist that will archive a complete, clean copy of the website and produce someone to testify to the process in a more rigorous fashion.
What if the website has changed or been removed? If you didn’t preserve it in time, you can turn to the Internet Archive, a library website that has been taking snapshots of public webpages for decades. While they aren’t precisely in the litigation business and ask you nicely not to serve them with legal process, they will (for a fee) pull a clean snapshot of a website in their archive as it appeared at a particular date and time and provide an affidavit as to its authenticity. Their model affidavit contains essentially the information that you would want from your own witness.
2. Relevance/Prejudice
Ok, so you’ve established that the document that you want to show the jury is an authentic copy of a website appearing at a particular URL. How can you show that it is relevant to your case?
Obviously, this is largely a case-specific question. But one critical issue – often lumped in with authenticity – is authorship. Who wrote the contents of the website that appears at a particular internet address? Often this is the central question to determining whether the document is something that can reasonably be shown to the jury.
For basic corporate websites this is frequently undisputed. But if you have to prove it, there are a number of ways to do so. On a basic level, you could obtain internet domain registration information from ICANN, the entity charged with coordinating the domain names and IP addresses that allow traffic to flow seamlessly across the internet. The easiest place to start is with ICANN’s WHOIS service, which provides access to the electronic registration information. Large corporations tend to register directly – the WHOIS information for www.microsoft.com has Microsoft’s corporate name, mailing address, and telephone number. Smaller companies and individuals tend to register through domain registrars like GoDaddy who can, in turn, be subpoenaed for the relevant customer information.
Things get more difficult in the case of social media websites where the content in question is prepared by individual users rather than the owner of the website itself. In fact, one of the most frequently litigated issues in internet evidence concerns social media posts by criminal defendants. It’s not uncommon for a criminal defendant to post something vaguely-confessionlike on his or her social media account without regard for the fact that prosecutors will absolutely positively be watching for it. But assuming that the defendant does not testify, how do you prove that they were the author?
There’s no one answer to this question and courts have gone in different directions.[3] Some of the time, you simply can’t admit the post – particularly where a social media account is used by multiple people, operates via a pseudonym, or there is reason to believe that the account is phony. In other cases, posts have been admitted, particularly where the defendant has previously admitted to using the account, the account has personal photos or other information that could only reasonably come from the defendant, or where computer forensics can tie the profile to the defendant’s computer. [4]
3. Hearsay
So, you’ve established that the website is authentic and that it was authored by the right person. But hold on, you’ve still got to worry about whether the website is hearsay! We’ve written before about hearsay, the rule that factual claims made in out of court statements or documents are not admissible as evidence of the truth of those claims.
On an analytic level, you could think of hearsay as a mere subset of relevance or authenticity – a rumor that you heard or a random piece of paper that you found aren’t trustworthy evidence of anything. But as a practical matter, the rule against hearsay is the central obsession of the law of evidence and arguments about hearsay tend to focus less on specific reliability judgments and more on whether evidence fits into established exceptions to the hearsay rule. So, it’s best to treat it as a separate hurdle to overcome.
As with all hearsay inquiries, the first question that you should ask yourself is whether the document is genuinely being offered as proof of its factual representations. Often the answer is yes, but not always. If you’re offering a website to establish that a party published a lie (say for defamation or fraud), you aren’t looking to prove the truth of the website’s claims. If you’re offering a website to show that a defendant was aware of a fact (because they wrote it on their website), you similarly aren’t offering the website “for its truth” and the exhibit may not be hearsay at all.
If the website is being offered as proof of the things that it says, we need to find a hearsay exception. As always, the easiest by far is Fed. R. Evid. 801(d)(2), which applies to statements made by an adverse party or that party’s co-conspirator. It also covers statements that an adverse party “adopted,” even if they did not originally write them. If your adversary published the website or authored the social media post, you’re in good shape.
What if they did not? Some websites have specific exceptions. For example, market reports showing daily stock or commodity prices are allowed in under Fed. R. Evid. 803(17). Certain public reports of government agencies are allowed in under Fed. R. Evid. 803(8).
But if you’re looking to admit a third party website as evidence of the claims that it makes, things can be more difficult. We’ve written before about how email is not always a business record and many of the same problems apply to websites, which often fail under Fed. R. Evid. 803(6) because they were not authored contemporaneously with the events that they describe or are not regularly recorded in the course of a business. There are cases that hold public websites to be business records, but you should exhaust all other avenues before pinning your admission hopes there.
4. Avoiding Problems
How can you shore things up? If you know that a website is likely to feature as evidence at trial, you should try to set yourself up for success early. As with many evidentiary issues, depositions and RFAs are your friends here. If you can establish through testimony that a defendant authored the website in question, you’re most of the way there. If you can’t, a well-crafted RFA can often get innocuous looking admissions about the “authenticity” of a webpage produced in discovery. If you tweak such requests to also satisfy the elements of the relevant hearsay exception, you’ve put yourself in an excellent position to avoid evidentiary problems later.
[1] See, e.g., United States v. Needham, 852 F.3d 830, 836-37 (8th Cir. 2017).
[2] See, e.g., Smoot v. State, 729 SE 2d 416 (Ga. App. 2012); see also 2 McCormick On Evid. § 227 (9th ed.) (“Printouts of internet webpages must first be authenticated as accurately reflecting the content and image of a specific webpage. Such accuracy can generally be established if the printout has a URL (or Uniform Resource Locator) address and date stamp and is accompanied by an affidavit from a percipient witness, such as trial counsel.”).
[3] For example, the Delaware Supreme Court did a deep dive into the various ways that courts have approached social media evidence. See Parker v. State, 85 A.D. 682, 686-88 (Del. 2012)
[4] For a useful article collecting cases that go in different directions, see Gregory P. Joseph, Authentication What Every Judge and Lawyer Needs to Know About Electronic Evidence, 95 Judicature 2, 52 (2015).
