This case involves a profile posted on a social media networking site, MySpace. Such Web sites, which include Facebook, LinkedIn, Plaxo, and Twitter, are increasingly popular vehicles for the dissemination of personal information posted on individualized profiles. Social media Web sites offer users multi-faceted avenues to “network” with fellow users, along with control over the content of their profiles.

In Independent Newspapers, Inc. v. Brodie, 407 Md. 415, 424 n.3 (2009), the court explained: “Social networking sites and blogs are sophisticated tools of communication where the user voluntarily provides information that the user wants to share with others. . . . The user can choose what information to provide . . . .” Moreover, the Brodie Court recognized that these Web sites offer users the opportunity to post messages for the world to see, as well as the option “to tightly control the dissemination of [posted] information.” Id.

Typically free to users, social networking sites “can serve as an online newsletter or as a personal journal – where an individual can post concerns, ideas, opinions, etc. – and it can contain links to web sites or can use images or video.” Id. at 424. But, in the absence of limitations imposed by the user, “whatever is posted [is] available to the world at large.” Id. at 424 n.3. Moreover, the development of Web sites like YouTube allows users to upload streaming video, so that personal statements may be recorded and disseminated. Thus, such online networking communities have led to an expanding universe of shared information, and have been aptly characterized as “soda fountains for the twenty-first century.” See, e.g., John S. Wilson, MySpace, Your Space, or Our Space? New Frontiers in Electronic Evidence, 86 OR. L. REV. 1201, 1219-24 (2007) (reviewing the history of social networking sites).

The design and purpose of social media sites make them especially fertile ground for “statements involving observations of events surrounding us, statements regarding how we feel, our plans and motives, and our feelings (emotional and physical)[.]” Lorraine, 241 F.R.D. at 569. For that reason, both prosecutors and criminal defense attorneys are increasingly looking for potential evidence on the expanding array of Internet blogs, message boards, and chat rooms. See, e.g., Nelson, supra, at 13 (“It should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.”); Seth P. Berman et al., Web 2.0: What’s Evidence Between “Friends”?, 53 B.B.J. 5, 6 (Jan/Feb 2009) (social networking sites “may record people’s thought processes and impressions in unguarded moments, exactly the sort of evidence that can be invaluable during litigation”); Kathrine Minotti, Evidence: The Advent of Digital Diaries: Implications of Social Networking Web Sites for the Legal Profession, 60 S.C. L. REV. 1057, 1059-61, 1066-68, 1071-73 (2009) (“Prosecutors are gathering information from social networking web sites for evidence. . . .”).

The anonymity features of social networking sites may present an obstacle to litigants seeking to authenticate messages posted on them. See, e.g., Paul W. Grimm et al., Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information, 42 AKRON L. REV. 357, 370-71 (2009) (“Chat room and text or instant messaging ‘dialogues’ . . . pose unique challenges to authentication due in large part to the fact that they typically are created by parties using anonymity-protecting ‘screen names’ on websites where the host cannot be assumed to know the content.”). That is the issue we encounter here: whether the State adequately established the author of the cyber message in question.

Despite the pervasive popularity of social networking sites and their potential as treasure troves of valuable evidence, some state’s appellate courts have not yet addressed the issue of authenticating anonymous or pseudonymous documents printed from social media Web sites.

In the leading case of Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007), Magistrate Judge Paul Grimm, a noted authority on electronic discovery, offered wellreasoned methods to authenticate various types of electronically stored information, including e-mails, text messages, chat room logs, and “Internet Website Postings.” Although Lorraine recognized that such evidence “may require greater scrutiny than that required for the authentication of ‘hard copy’ documents,[]” the court suggested that the existing rules governing authentication provide an adequate analytical framework to determine the admissibility of such evidence. Id. at 542-43.

In particular, the Lorraine Court cited Federal Rule of Evidence 901(b)(4), the federal analogue to Md. Rule 5-901(b)(4), as “one of the most frequently used to authenticate e-mail and other electronic records.” Id. at 546. It observed: “‘[T]he characteristics of the offered item itself, considered in the light of circumstances, afford authentication techniques in great variety,’ including authenticating an exhibit by showing that it came from a ‘particular person by virtue of its disclosing knowledge of facts known peculiarly to him[.]’” Id. (quoting FED. R. EVID. 901(b)(4) advisory committee’s note). See generally Steven Goode, The Admissibility of Electronic Evidence, 29 REV. LITIG. 1, 7 (2009) (explaining why “the existing rules of evidence are adequate to the task of addressing questions about the admissibility of such electronic evidence”).

Maryland Rule 5-901(b)(4), like its federal counterpart, permits authentication of electronic communications based on the content and the circumstances of those messages.

Circumstantial evidence may be sufficient to establish authorship of an electronic message without the use of technological data. See also State v. Thompson, 777 N.W.2d 617, 623 (N.D. 2010) (holding that evidence that recipient of threatening text messages was familiar with the defendant’s phone number and distinctive electronic signature was sufficient to authenticate messages as having been sent by the defendant); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002) (considering content of e-mails printed from a corporate Web site and attached to authenticating affidavit in granting a preliminary injunction).

A chat log is a verbatim transcript of a private “real time” online conversation between site members, which can be authenticated by either of the two participants. In contrast, social networking profiles contain information posted by someone with the correct user name and password, with the intent that it be viewed by others. Therefore, a proponent should anticipate the concern that someone other than the alleged author may have accessed the account and posted the message in question. Cf., e.g., In re K.W., 666 S.E.2d 490, 494 (2008) (although victim admitted that the proffered MySpace page was hers, she claimed that her friend posted the answers to the survey questions that defendant sought to introduce as impeachment evidence with respect to her claims of rape). See also St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774-75 (S.D. Tex. 1999) (“There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet . . . hackers can adulterate the content on any website. . . .”).

A pseudonymous social networking profile might be authenticated by the profiled person, based on an admission.

Decisions as to authentication of evidence from chat rooms, instant messages, text messages, and other electronic communications from a user identified only by a screen name as instructive to the extent that they address the matter of authentication of pseudonymous electronic messages based on content and context.

Social media profiles may be circumstantially authenticated in the same manner as other forms of electronic communication – by their content and context.

The inherent nature of social networking Web sites encourages members who choose to use pseudonyms to identify themselves by posting profile pictures or descriptions of their physical appearances, personal background information, and lifestyles. This type of individualization may lend itself to authentication of a particular profile page as having been created by the person depicted in it.

See related Blog Post, published in the New Jersey Family Law blog.

See also: The Web Means the End of Forgetting, By JEFFREY ROSEN, Published in The New York Times.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

To admit expert testimony under N.J.R.E. 702, the matter must concern a subject that is beyond the understanding of an average juror, and the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

N.J.R.E. 404(b) provides:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. [However,] [s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[Ibid.]

In State v. Cofield, 127 N.J. 328, 338 (1992), the Court adopted a four-part test to determine the admissibility of such evidence.

The Cofield test requires that:

1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Williams, 190 N.J. 114, 122 (2007).]

Additionally,

even if relevant under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible for all relevant evidence: “relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.”

[State v. Lykes, 192 N.J. 519, 534-35 (2007) (quoting N.J.R.E. 403).]

In order to minimize the “inherent prejudice in the admission of other-crimes evidence,” the judge must “sanitize the evidence when appropriate” before it is presented to the jury. Barden, supra, 195 N.J. at 390. After the admission of such evidence, the judge should clearly instruct the jury on the prohibited and permitted uses for which it may consider the evidence, and repeat the instructions at the conclusion of the case. State v. Blakney, 189 N.J. 88, 93 (2006).

The analytic paradigm detailed above has also been applied in instances where the other bad conduct evidence did not amount to a crime, or, to use the language of the Rule’s predecessor, a “civil wrong.” ^[1] See State v. Covell, 157 N.J. 554, 564-71 (1999) (applying the analysis to defendant’s statement that he liked “‘young girls’” in a prosecution for luring); State v. Nance, 148 N.J. 376, 388-89 (1997) (applying the analysis to a series of non-criminal “bad conduct” events between defendant and his girlfriend); State v. Koskovich, 168 N.J. 448, 483 (2001) (subjecting the defendant’s writings, “[a]lthough not overtly criminal in nature,” to the Cofield analysis”).

The evil the Rule seeks to avoid is that “[i]f other crime evidence were to be admitted, the jury might think of a defendant as a bad person in general and convict . . . .” Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 404 (2010) (citations omitted); see also Model Jury Charges (Criminal), “Proof of Uncharged Crimes, Wrongs, or Acts,” (June 2007) (advising jury “not [to] use th[e] evidence to decide that the defendant has a tendency to commit crimes or that (he/she) is a bad person”).

However, res gestae evidence of “[t]he defendant’s actions ‘serves to paint a complete picture of the relevant criminal transaction’ and therefore [is] admissible.” State v. Long, 173 N.J. 138, 156 (2002) (quoting State v. Martini, 131 N.J. 176, 242 (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995)).

[T]o be relevant, the other-crimes evidence must bear on a subject that is at issue at the trial, for example, an element of the offense or some other factor such as motive, opportunity, intent, or plan. In determining whether 404(b) evidence bears on a material issue, the Court should consider whether the matter was projected by the defense as arguable before trial, raised by the defense at trial, or was one that the defense refused to concede. Further, the other-crimes evidence must be necessary for the proof of the disputed element. Indeed, in assessing the fourth prong, courts should consider whether the matter can be proved adequately by other evidence.

[State v. P.S., ___ N.J. ___ (2010) (slip op. at 26-27).]

“‘The likelihood of prejudice is acute when the proffered evidence is proof of a defendant’s uncharged misconduct.’” Barden, supra, 195 N.J. at 394 (quoting State v. Stevens, 115 N.J. 289, 302 (1989)).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

1. See Evid. R. 55 (“[E]vidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil wrong on another specified occasion but, . . . such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident.”).

Under principles of issue preclusion, a plaintiff’s allegations of domestic violence rejected by a prior trial judge should not be admitted into evidence in the hearing on a subsequent domestic violence complaint. See J.F. v. B.K., 308 N.J. Super. 387, 392 (App. Div. 1998) (stating that a plaintiff may not relitigate allegations adjudicated adversely to her in a hearing on a prior domestic violence complaint).

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N.J.S.A. 2A:53A-27 states:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. . . .

Furthermore, N.J.S.A. 2A:53A-29 provides: “If the plaintiff fails to provide an affidavit . . . it shall be deemed a failure to state a cause of action.”

Although the statute refers to “the plaintiff,” a counterclaimant is considered to be the same as a plaintiff for purposes of the affidavit of merit statute. Charles A. Manganaro Consulting Eng’rs, Inc. v. Carney’s Point Twp. Sewerage Auth., 344 N.J. Super. 343, 348 (App. Div. 2001); Diocese of Metuchen v. Prisco & Edwards, AIA, 374 N.J. Super. 409, 415 (App. Div. 2005).

On appeal, the court’s standard of review is plenary from dismissal of a claim for failure to serve an affidavit of merit. Natale v. Camden County Corr. Facility, 318 F.3d 575, 579 (3d Cir. 2003); see also Smerling v. Harrah’s Entm’t, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006) (“review of a trial court’s order of dismissal of a complaint pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief may be granted, is plenary”).

“A claim against an attorney for alleged malpractice is a claim for property damage within the legislative intent and plain meaning of the statute.” Cornblatt v. Barow, 303 N.J. Super. 81, 86 (App. Div. 1997), rev’d on other grounds, 153 N.J. 218 (1998). Whether the affidavit of merit statute is applicable depends on whether “the claim’s underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession.” Couri v. Gardner, 173 N.J. 328, 340 (2002). “If such proof is required, an affidavit of merit shall be mandatory for that claim, unless either the statutory, N.J.S.A. 2A:53A-28, or common knowledge exceptions apply.” Id. at 341.

In Hubbard v. Reed, 168 N.J. 387, 390 (2001), the Court held that “an affidavit need not be provided in common knowledge cases when an expert will not be called to testify.” A common knowledge case is one in which “jurors’ common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant’s negligence without the benefit of the specialized knowledge of experts.” Id. at 394 (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)).

In a related context, the Court said in Palanque v. Lambert-Wooley, 168 N.J. 398 (2001):

Because defendant’s careless acts are quite obvious, a plaintiff need not present expert testimony at trial to establish the standard of care. . . . [T]he case is treated as an ordinary negligence action in which a jury can determine without the aid of experts whether a defendant acted with reasonable care. . . . [R]equiring an affidavit of merit in such a case is not necessary to achieve the primary goal of the statute, that is, to weed out meritless malpractice lawsuits at an early stage and to prevent frivolous litigation.

[Id. at 406.]

This common knowledge exception to the affidavit of merit requirement is to be narrowly construed. Hubbard, supra, 168 N.J. at 397.

The court said in Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 12-15 (App. Div. 2001):

New Jersey courts have dispensed with the expert testimony requirement in cases where attorneys have failed to fulfill the most basic obligations. See, e.g., [Sommers v. McKinney, 287 N.J. Super. 1, 8-12 (App. Div. 1996)] (lawyer entirely failed to submit a legal argument in client’s defense); [Brizak v. Needle, 239 N.J. Super. 415, 431-32 (App. Div.), certif. denied, 122 N.J. 164 (1990)] (attorney failed to protect client’s claim against the running of the statute of limitations); Stewart v. Sbarro, [142 N.J. Super. 581, 591-92 (App. Div.) certif. denied 72 N.J. 459 (1976)] (lawyer sacrificed client’s creditor priority by failing to ensure that a bond and mortgage were properly recorded).

[345 N.J. Super. at 12-13.]

See also Popwell v. Law Offices of Broome and Horn, 363 N.J. Super. 404, 410 (Law Div. 2002) (no affidavit of merit required where application for a trial de novo from an adverse arbitration decision was not timely filed).

In Brach, Eichler, supra, the court said:

A common thread runs through these cases, namely none of them required the trier of fact to evaluate an attorney’s legal judgment concerning a complex legal issue. Where a trier of fact would be put in such a position, New Jersey courts have required expert testimony to be presented. See, e.g., [Aldrich v. Hawrylo, 281 N.J. Super. 201, 214 (App. Div. 1995), appeal dism., 146 N.J. 493 (1996)] (expert testimony was required where an attorney told sellers of property that they did not need to disclose zoning restriction to buyers because the attorney reasoned that the restriction was invalid).

[345 N.J. Super. at 13.]

“Legal malpractice is a variation on the tort of negligence.” Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 357 (2004); accord McGrogan v. Till, 167 N.J. 414, 425 (2001); see also N.J.S.A. 2A:53A-27 (reference to “malpractice or negligence.”). In assessing application of the affidavit of merit statute, the Court in Couri, supra, distinguished between ordinary negligence and malpractice:

[C]laims against licensed professionals acting in a professional capacity that require proof of ordinary negligence but not of a deviation from professional standards are not encompassed by the statute. For example, while the former standard would include allegations that a psychiatrist failed to diagnose a patient properly or provide proper treatment, it would exclude allegations that a psychiatrist negligently tripped a patient when the patient entered the doctor’s office, which clearly would be outside the scope of the statute.

[173 N.J. at 341.]

However, as the court held in Manganaro Consulting Engineers, supra, 344 N.J. Super. at 347, “the Affidavit of Merit Statute has no applicability to a defendant who asserts, as an affirmative defense to an action by a professional for the recovery of fees, that the plaintiff should be denied any relief because the professional services were not properly performed.”

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Expert testimony is admissible under N.J.R.E. 702 when it “concern[s] a subject matter that is beyond the ken of the average juror.” Hisenaj v. Kuehner, 194 N.J. 6, 15 (2008). In this case, the court left for another day consideration of whether a judge, who is not an “average juror” because of his familiarity with the subject matter of a legal malpractice claim, can rely on his own knowledge and expertise in deciding the issues.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Rule 1:6-6 provides:

If a motion is based on facts not appearing of record, or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein. The court may direct the affiant to submit to cross-examination, or hear the matter wholly or partly on oral testimony or depositions.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

There are circumstances where previously known facts and information, properly established and relevant to such issues as child support, are brought to the attention of the court, and they should not, as a matter of law, be barred or disregarded. Family Part decisions, including support, must be equitable and just, and ultimately, properly documented information should, as a general rule, be considered when brought to the court’s attention.

See related Blog Post, published in the New Jersey Family Law blog.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

A motion to terminate alimony based upon changed circumstances or a motion for increases in alimony and child support are subject to the mandatory requirements set forth in Rule 5:5-4(a):

When a motion or cross-motion is brought for the entry or modification of an order or judgment for alimony or child support based on changed circumstances, the pleading filed in support of the motion shall have appended to it a copy of the prior case information statement or statements filed before entry of the order or judgment sought to be modified and a copy of a current case information statement.

As the court prviously stated,

This mandate is not just window dressing. It is, on the contrary, a way for the trial judge to get a complete picture of the finances of the movants in a modification case. This is important because the movant bears the initial burden in such a case under Lepis v. Lepis, 83 N.J. 139 (1980).

[Gulya v. Gulya, 251 N.J. Super. 250, 253-54 (App. Div. 1991).]

Oral argument can not cured these defects because “facts which are neither of record, judicially noticeable, nor stipulated, [that a party attempts to present] by way of . . . oral argument . . . do not constitute cognizable facts.” Pressler, Current N.J. Court Rules, comment on R. 1:6-6 (2010); see R. 1:6-2(a); R. 1:6-6.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

In this case, an audio recording was admitted in evidence after a Driver hearing.

The great weight of authority throughout the country sanctions the use of sound recordings where the matter contained therein is competent and relevant. See Annotation, 58 A.L.R.2d 1024 (1958). We adopt that view. As a condition to admissibility, however, the speakers should be identified and it should be shown that (1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement. Annotation, supra, at pp. 1027, 1032-36; as to confessions, see the many cases cited at pp. 1046-47.

A wire recorder which catches the actual voice of an accused and of his questioner, may be an invaluable aid to a court and jury where the issue of voluntariness of a confession is raised. See Williams v. State, 93 Okl. Cr. 260, 226 P.2d 989 (Crim. Ct. App. 1951). In fact, the recording may be more satisfactory and persuasive evidence than the written and signed document. In all situations, however, the trial judge should listen to the recording out of the presence of the jury before allowing it to be used. In this way he can decide whether it is sufficiently audible, intelligible, not obviously fragmented, and, also of considerable importance, whether it contains any improper and prejudicial matter which ought to be deleted. See Leeth v. State, 94 Okl. Cr. 61, 230 P.2d 942 (Crim. Ct. App. 1951).

[State v. Driver, 38 N.J. 255 (1962).]

See related Blog Post, published in the New Jersey Family Law blog.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.