The slip opinion is the first version of an opinion released by the Chi ef Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA, authenticated and formally published. The slip opinion may contain d eviations from the formal authenticated opinion.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1
Opinion Number:

_________________ 2

F iling Date: June 16, 2022 3

NO. S

- 1

- SC

- 38769 4

STATE OF NEW MEXICO, 5

Plaintiff

- Petitioner
, 6

v. 7

JESENYA O., 8

Child

- Respondent. 9

ORIGINAL PROCEEDING ON CERTIORARI 10 Donna J. Mowrer, District Judge 11

Hector H. Balderas, Attorney General 12 Benjamin L. Lammons, Assistant Attorney General 13 Santa Fe, NM 14

for Petitioner 15

Liane E. Kerr, LLC 16 Liane E. Kerr 17 Albuquerque, NM 18
for Respondent 19OPINION 1

ZAMORA , Justice. 2

{1} This appeal calls upon us to consider issues relating to the authentication of 3
social media evidence. Specifically, we are asked to review a determination by the 4
Court of Appeals that the district court abused its discretion in authenticat ing 5
screenshots of Facebook Messenger messages allegedly initiated by Jesenya O. 6
(Child) in the near aftermath of the events giving rise to the underlying delinquency 7
proceeding. State v. Jesenya O. , 2021

- NMCA

- 030, ¶ 29, 493 P.3d 418. As part of 8
this inqui ry, we consider as a matter of first impression whether admissibility of such 9
evidence should be governed by the traditional authentication standard set out in 10

Rule 11

- 901 NMRA or by a heightened standard that seeks to account for the 11
possibility that comm unications issued on social media platforms may be especially 12
susceptible to fraud or impersonation. 13

{2} We agree with the Court of Appeals that the trad itional authentication 14

standard set out in Rule 11

- 901 provide s the appropriate legal framework f or 15

authent icating social media evidence. Jesenya O ., 2021

- NMCA

- 030, ¶ 21. But we 16
disagree with the conclusion reached by the Court of Appeals that the State failed to 17

meet the threshold for authentication established under that rule , much less that the 18

district court abused its discretion in finding the State had met its burden

. Id. ¶ 29. 192 W e hold the State’s authentication showing was sufficient under Rule 11

- 901 to 1
support a finding that , more likely than not, the Facebook Messenger account used 2
to send the messages belonged to Child and that Child was the author of the 3
messages. Accordingly, we reverse the Court of Appeals and reinstate Chi ld’s 4
delinquency adjudications. 5

I. FACTUAL AND PROCEDURAL BACKGROUND 6

{3} Child, then age seventeen, b ecame Facebook friends with a former 7

schoolmat e , Jeremiah Erickson (Erickson), then age nineteen. Over the next several 8

weeks, the two conversed primarily , if not exclusively, through their respective 9

Facebook 1 Messenger accounts. Facebook Messenger is an instant messaging 10

service which allows users to communicate with one another from within Facebook 11

o r via a stand

- alone application. See Messenger From Meta , 12
https://about.facebook.com/technologies/messenger/ (last visited June 1 , 2022). 13

Facebook u sers may access the application from a variety of devices, including 14
desktop computers, mobile phones, and tablets. Id. On two occasions, Child and 15

1 Facebook changed its company brand to “Meta” in 2021. See Introducing Meta: A Social Technology Company
, https://about.fb.com/news/2021/10/facebook

company

- is

- now

- meta/ (last visited June 1 , 2022). Throughout this opinion, we refer to the company name in u se when the messages at issue were allegedly sent, i.e.
, Facebook.3 Erickson used Facebook Messenger to arrange in

- person me etings, during which 1

Erickson drove to Child’s house to pick her up and drive her somewhere to “han g 2

out

. ” 3

{4} It was the second of these meetings that gave rise to the events leading to 4
Child’s adjudication. Both Erickson and Child testified to the jury that their get

5
together on the night of February 24, 2020
, did not end well, although each provided 6

a different narrative as to what unfolded. According to Erickson
, Child had acted 7

“weird” at the get

- together and appeared to be high or drunk. He testified that , while 8
he was driving Child home, she asked him to park his vehicle near a home located 9

on an alley behind a fur niture store, which he did, leaving the engine running and 10
the driver’s side door open

. According to Erickson
, after the two exited the car to 11
say good night, Child pushed him out o f the way, assumed control of the vehicle, 12

and drove of f by herself
, crashing through a chain

- link fence
, striking a dumpste r, 13

and driving the car out of Erickson’s sight

. 14

{5} Child’s testimony painted a different picture. According to Child
, Eric kson 15

was drunk and driving recklessly on the way to her home. She testified that he made 16

advances toward her and that he stop ped the car in the alley after she rejected them. 17
According to Child, both parties exited the vehicle , Child asked if she could drive 18

the vehicle , Erickson refused, and Child then told Erickson she would not get back 194 in the car with him . Child began to walk down the alley with Erickson following her

. 1

Child testifie d she ran away from Erickson in fear and walked the rest of the way 2

home alone

. On cross

- examination , Child claimed she did not have her phone with 3
her after leaving Erickson’s vehicle

. 4

{6} At Child’s adjudication
, the State sought to introduce evidence of 5

communications between Child and Erickson the State alleged took place on 6
Facebook Messenger the day after the incident involving Erickson’s vehicle

. The 7
evidence was proffered in the form of two screenshots (hereinafter “the February 25 8

messag es” ) showing communications between a user identified as Erickson and a 9
user identified by name and photograph as Child

. The messages reflected the 10
following exchange: 11

[Child]: Your car!! 12

[Child]: I was drunk as fuck 13
[Child]: I’m so sorry. 14
[Child]: Did u call the cops on me 15

[Erickson]: Had to. 16
[Child]: And u gave them my name? 17
[Erickson]: Had to. What you did was beyond fucked up. 18
[Erickson]: And now I’m in deep shit for it. 195 [Child]: I’m IN DEEP SHIT 1

[Child]: I w as completely drunk I don’t know what I was doing 2

[Erickson]: Well we’re both fucked. 3
[Child]: Yeah no kidding. 4

[Child]: I ’ m going to jail 5
[Erickson]: I can’t believe you took my car to Clovis and totaled it. 6

[Child]: I was drunk. 7

{7} The State sought to authenticate the February 25 messages through Erickson’s 8
testimony as to his personal knowledge of both the accuracy of the screenshots and 9
his history of Facebook Messenger communication s with Child, as well as through 10
the contents of the messages themsel ves. Child’s trial counsel objected to the 11

authentication of the exhibits
, arguing the screenshots did not show with certainty 12
that the messages were sent from Child’s Facebook account and emphasizing what 13
counsel characterized as the inherent difficulty in “lay[ing a ] foundation on 14
Facebook Messenger messages because any body can have access to somebody’s 15
phone or Facebook accoun t.” The district court overruled the objection, and the 16

evidence was admitted. Child was subsequently adjudicated delinquent and appealed 17

the district court’s judgment and disposition to the Court of Appeals

. 186 {8} On appeal, Child challenge d the foundation laid by the State for the 1
screenshots of the February 25 messages. The C ou rt of A ppeals reversed based 2
solely on the authentication issue

. Jesenya O. , 2021

- NMCA

- 030, ¶¶ 29, 36. It 3

concluded that , while communications arising on social media platforms are subje ct 4
to the same authentication requirements as other evidence subject to Rule 11

- 901, 5

the State had failed in its burden to properly authenticate the messages

. Jesenya O.
, 6

2021

- NMCA

- 030, ¶¶ 24

- 29

. In so holding
, the Court of Appeals focused in part on 7
the fact that the content of the messages was not “sufficiently confidential to 8

establish that only Child could have authored the messages.” Id. ¶ 28 (emphasis 9
added)

. The Court concluded the error in admitting the m essages for the jury’s 10

consideration was not harmless , vacated Child’s adjudications, and remanded for a 11
new hearing

. Id. ¶¶ 30

- 36 , 68

. 12

{9} We granted the State’s petition for certiorari review of whether the Court of 13
Appeals imposed the correct standard for a uthenticating the messages at issue and 14

whether it applied the appropriate ly deferential standard of review to the district 15

court’s decision to admit the messages as evidence. W e conclude that the Court of 16

A ppeals properly relied on the traditional standar d under Rule 11

- 901 as the 17
framework for assessing the authenticity of the February 25 messages
, but that it 187 misa pplied the provisions of Rule 11

- 901(B)(1) and (B)(4) to the facts and 1

circumstances of this cas e and failed to afford proper deference to the district court

. 2

II. DISCUSSION 3

A. Standard of Review 4

{10} We “generally review evidentiary matters for an abuse of discretion

. ” State v. 5

Montoya , 2014

- NMSC

- 032, ¶ 15, 333 P.3d 935 . “An abuse of discretion occurs 6
when the [evidentiary] ruling is clearly against the logic and effect of the facts and 7
circumstances of the case. We cannot say the [ district ] court abused its discretion by 8
its ruling unless we can characterize it as clearly unte nable or not justified by 9

reason .” State v. Sanchez , 2020

- NMSC

- 017, ¶ 21, 476 P.3d 889 (internal quotation 10
marks and citation omitted). In the authentication context, “there is no abuse of 11
discretion when the evidence is shown by a preponderance of the evidence to be 12
what it purports to be.” State v. Jimenez , 201 7

- NMCA

- 039, ¶ 18, 392 P.3d 668 13
(internal quotation marks and citation omitted) . However, we review de novo the 14
threshold legal question as to the proper framework within which to analyze a 15
particular evidentiary issue. See State v. Carrillo , 2017

- NMSC

- 023, ¶ 26, 3 9 9 P.3d 16

367 (“ [T]he threshold question of whether the trial court applied the correct 17
evidentiary rule or standard is subject to de novo review on appeal.” )

. 188 B. The Trad itional Standard Applied Under Rule 11

- 901 Provides the 1 Proper Framework for Authenticating Evidence From Social Media 2 Platforms 3

{11} For evidence to be properly authenticated under Rule 11

- 901 there must be a 4
showing “sufficient to support a finding that the item is what the proponent claims 5

it is

. ” Rule 11

- 901(A). “ The appearance, contents, substance, internal patterns, or 6
other distinctive characteristics of the item, taken together with all the 7

circumstances ” may be considered in determining whether evidence has been 8
adequately authenticated

. Rul e 11

- 901(B)(4). The foundation required to 9
authenticate an item of evidence “goes to conditional relevancy,” State v. 10

Arrendondo , 2012

- NMSC

- 013, ¶ 9, 278 P.3d 517, and triggers “a two

- step 11
procedure ; the [trial] judge initially plays a limited [but important], screening role, 12
and the jury then makes the final decision on the question of fact,” ultimately 13
determining the weight of the evidence. Edward J. Imwinkelried, Evidentiary 14

Foundations § 4.01[1], at 43 (Mat t hew Bender 11th ed. 20 20 ). 15

{12} With the increased use of social media evidence in litigation, courts 16
nationwide have grappled with the question of whether the authenticity of evidence 17
from social media platforms is properly measured under the tradit ional rules of 18

authentication found in Federal Rule of Evidence 901 and its many state 19

co unterparts , including our own
, or, instead, whether judicial concerns over the 209 increased dangers of falsehood and fraud posed by the relative anonymity of social 1

media evidence warrant the adoption of heightened authentication standards

. There 2

are two opposing lines of authority on th is issue. 3

{13} Among the cases widely cited as embracing a heightened standard of 4

authentication for social media evidence is Griffin v. State , decided by the Maryland 5
Court of Appeals . 19 A.3d 415 (Md. 2011). In Griffin
, a murder prosecution
, the 6
state sought to authent icate a redacted printout of a MySpace page allegedly 7
belonging to the defendant ’ s girlfriend

. Id. at 418

- 19

. The printout included 8

information about the user’s username , location, birthdate
, and a profile photo 9
depicting a couple embracing

. Id. at 418. It also included this post: “FREE 10

BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO 11

YOU ARE!!” Id

. The state sought to authenticate the printouts through the testimony 12
of the lead investigator in the case
, who testified that he was able to determine that 13
the MySpace page belonged to the defendant’s girlfriend because the user’s profile 14
photograph depicted her with the defendant, the birth date matched that of the 15
defendant’s girlfriend, and the content of the m essage referred to the defendant, 16
whose nickname was “Boozy.” Id . The trial court admitted the MySpace evidence

. 17

Id. at 419. 1810 {14} The Griffin C ourt , over a two

- justice dissent, concluded that the trial court 1

“ abused [ its ] discretion in admitting the My S pace pro file [ under Maryland Rule of 2

Evidence ] 5

- 901(b)(4). ” Griffin , 19 A.3d at 423

- 24. It concluded that the display of 3
the girlfriend’s picture, “ coupled with her birth date and location, were not 4

sufficient [ l y ] ‘distinctive characteristics’ on a MySpace profil e to authenticate its 5
printout, given the prospect that someone other than [ the defendant’s girlfriend] 6
could have not only created the site
, but also posted the ‘snitches get stitches’ 7

comment.” Id. In so holding, the Court declined to endorse the traditional 8
authentication approach and instead applied heightened scrutiny to social media 911 evidence “ because of the heightened possibility for manipulation by other than the 1

true user or poster. ” Id. at 42 4

. 2 2

{15} The Griffin C ourt ack nowledged that its holding did not mean “that printouts 3
from social networking [web] sites should never be admitted

. ” Griffin , 19 A.3d at 4

427

. The Court suggested the party proffering the evidence would be well advised 5

to (1) “ask the purported creator if she indeed created the profile and also if she 6
added the posting in question
, ” (2) “search the computer of the person who allegedly 7
created the profile and posting and examine the computer’s internet history and hard 8

2 The Maryland Court of Appeals (consolidating three cases to address authentication of social media) has since endorsed the traditional approach. Sublet v. State , 113 A.3d 695 (Md. 2015). While not formally overruling Griffin , the Sublet Court adopted the reasoning of the Second Circuit in United States v. Vayner , 769 F.3d 125 (2d. Cir. 2014) and held th at, “in order to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be.” Sublet , 113 A.3d at 698. Once this threshold showing has been made, the evidence is admissible, and it is the fact

- finder who determines whether the evidence is reliable and, ultimately, authentic. See Sublet , 113 A.3d at 715

- 16 (stating that authentication of evidence “merely ren ders [it] admissible, leaving the issue of its ultimate reliability to the jury.”) . Nevertheless, Griffin remains “one of the key cases” in the development of this area of the law, cited for the proposition that social media evidence should be subjected to a heightened degree of scrutiny for authentication purposes. See 2 Robert P. Mosteller et al., McCormick on Evidence § 227, at 108

- 09 & n.25 (8 th ed. 2020); see also State v. Hannah , 151 A.3d 99, 104

- 0 5 (N.J. Super. Ct. App. Div. 2016) (describing the “Ma ryland approach” as “requir[ing] greater scrutiny than letters and other paper records ” ( internal quotation marks and citation omitted)).12 drive to determine whether that computer was used to originate the social networking 1
profile and posting in question
, ” or (3) “obtain information directly from the social 2
networking website that links the establishment of the profile to the person who 3
allegedly created it and also links the posting sought to be introduced to the person 4

who initiated it.” Id. at 427

- 2 8. 5

{16} While many courts have expressed similar concerns about fraudulent 6
authorship of social media communications, few have adopted the heightened 7

req uirements for a prima facie showing announced in Griffin . Instead, they have 8

endorsed the view that the traditional authentication standard is adequate to the task 9
of vetting social media evidence

. See generally Tienda v. State
, 358 S.W.3d 633
, 10

638

- 642 (Te x . Crim . App. 2012) (“ Courts and legal commentators have reached a 11

virtual consensus that, although [electronic media present] new

. . . issues with 12

respect to

. . . admissibility

. . . , the rules of evidence already in place for 13
determining authenticity are at least generally adequate to the task. ” ( internal 14
quotation marks and citation omitted) )

. 15

{17} The traditional authentication approach is reflected in Tienda
, id.
, an oft

- cited 16

case from the Texas Court of Criminal Appeals

. In Tienda , the defendant challenged 17

the admission into evidence of several MySpace pages that tended to implicate him 18

in a gang

- related murder , including posts, photos, and instant messages

. Id. at 634

- 1913 3 7. The sta te relied primarily upon testimony by the victim’s sister to authenticate 1
the posts, which she found by searching MySpace. I d. at 635. The defendant 2
objected, arguing that MySpace accounts could easily be created or accessed by 3
someone other than the purported author. Id. at 636. The trial court admitted the 4
evidence, and the Texas Court of Criminal Appeals affirmed. Id. at 637. Though 5
acknowledging “the provenance” of social media evidence “can sometimes be open 6
to question

— computers can be hacked, protected passwords can be compromised, 7
and cell phones can be purloined,” id. at 641, the Tienda Court determined that “the 8
internal content of the MySpace postings

— photographs, comment s, and music

— 9
was sufficient circumstantial evidence to establish a prima facie case such that a 10
reasonable juror could have found that they were created and maintained by the 11

[defendant] .” Id. at 642. In so holding , the Tienda C ourt made clear that the sta te, as 12
the proponent of the evidence, was not required to remove all doubt over the posts’ 13

provenance ; this was a question for the jury to decide. Id. at 6 45

- 46 (recognizing 14
that the “possibility that the [defendant] was the victim of some elaborate and 15

on going conspiracy ” to impersonate him on social media was a scenario for the jury 16
to assess once the state had made a prima facie showing of authenticity ). 17

{18} Today we clarify that , in New Mexico, the authentication of social media 18
evidence is governed by the trad itional authentication standard set out in Rule 11

- 1914 901
, which requires the proponent to offer “ evidence sufficient to support a finding 1

that the [ evidence ] is what the proponent claims it is

. ” See State v. Imperial , 2017

- 2

NMCA

- 040, ¶ 28, 392 P.3d 65 8 ( quoting Rule 11

- 901(A) ) . We reiterate that , in 3
meeting this threshold , the proponent need not demonstrate authorship of the 4

evidence conclusively ; arguments contesting authorship go to the weight of the 5
evidence, not its admissibility

. See State v. Jack son , 2018

- NMCA

- 066 , ¶ 19 , 429 6

P.3d 674 (holding that the fact that text messages could have been authored or 7
received by someone other than the defendant did “not negate the admissibility of 8
the text messages, but rather present[ed] an alternative to the S tate’s suggested 9
inferences,” which would be for the jury to assess)

. 10

{19} Two considerations inform our decision

. First, we agree with courts in other 11
jurisdictions that the authentication challenges arising from the use of social media 12

evidence in litigation are not so different in kind or severity from the challenges 13

courts routinely face in authenticating conventional writin gs. As one court 14
persuasively put it in analogous circumstances, 15

Rule 901

. . . does not care what form the writing takes , be it a letter, a 16 telegram, a postcard, a fax, an email, a text, graffiti, a billboard, or a 17 Facebook message. All that matters is whether it can be authenticated, 18 for the rule was put in place to deter fraud. The vulnerability of the 19 written word to fra ud did not begin with the arrival of the internet, for 20 history has shown a quill pen can forge as easily as a keystroke, 21 letterhead stationery can be stolen or manipulated, documents can be 22 tricked up, and telegra ms can be sent by posers. 2315 State v. Green , 8 30 S.E.2d 711, 714

- 15 (S.C. Ct. App. 201 9) (citation omitted)
, aff’d 1
as modified , 851 S.E.2d 440 (S.C. 2020)

. We are not convinced that the 2
authentication of messages passed between Facebook users poses unique obstacles 3
when compared to the authentication of evidence from other electronic sources, such 4

as text messages sent between mobile devices. See Jackson , 2018

- N MCA

- 066, ¶ ¶ 5

1 7

- 1 8 ( concluding that the state’s circumstantial evidence regarding the activity of 6
two phone numbers was sufficient to authenticate an exhibit with information 7
regarding the phone numbers)

. 8

{20} Second, the application of more demanding authentication requirements in the 9

social media realm

— such as those propounded in Griffin involving testimony from 10
the purported author of soci al media postings, as well as evidence gathered from the 11
user’s computer or the social media network itself

— would too often keep from the 12

fact

- finder reliable evidence based on an artificially narrow subset of auth entication 13

factors

. See Brendan W. Hogan, Griffin v. State: Setting the Bar Too High for 14
Authenticating Social Media Evidence , 71 Md. L. Rev. Endnotes 61, 85

- 86 (2012) 15
(observing that the authentication methods outlined in Griffin “are unnecessarily 16
specific and fail to discuss other traditional m ethods of authentication”). Cabining a 17

district court’s authentication analysis in this way would ultimately serve to hinder 18

the truth

- seeking process, with no discernible benefit. See generally State v. Trujillo
, 1916 2002

- NMSC

- 005, ¶ 16, 1 3 1 N.M. 709, 42 P.3d 814 (discouraging a reading of our 1
rules of evidence that “would deprive the jury of reliable

. . . evidence relevant to 2
the jury’s truth

- seeking role”). We decline to impose additional authentication 3
requirements for evidence that may be adequately vetted using the gatekeeping tools 4
already at hand. 5

{21} Having determined that the traditional authentication standard arising under 6

Rule 11

- 901 provides the appropriate framework for e valuating the authenticity of 7
the February 25 messages, we next turn to the question of whether the Court of 8
Appeals properly applied that framework in determining whether the district court 9
abused its discretion in admitting the State’s exhibits. 10

C. The Cour t of Appeals Erred in Concluding That the District Court 11 Abuse d Its Discretion in Admitting Evidence of the February 25 12 Messages 13

{22} In reviewing Child’s claim that the district court abused its discretion in 14
admitting the February 25 m essages, the Court of Ap peals correctly held that “our 15
rules for authentication provide an appropriate framework for determining 16
admissibility.” Jesenya O. , 2021

- NMCA

- 030, ¶ 21. H owever, the Court then applied 17
an unduly exacting standard in concluding that, because Child denied sending the 18

messages , the State failed to proffer business records connecting the messages to 19

Child
, and the communications themselves failed “ to establish that only Child c ould 2017 have authored [them], ” “ the district court abused its discretion in adm itting the 1

[ evidence ]

. ” Id. ¶ ¶ 26

- 29

. 2

{23} “ Rule 11

- 901(B) provides a non

- exhaustive list of examples of evidence that 3
satisfy the authentication requirement

. ” Salehpoor v. N.M. Inst

. of Mining and Tech

. , 4

2019

- NMCA

- 046, ¶ 27, 447 P.3d 1169

. For instance, evidence may be authenticated 5
by a witness with knowledge “that an item is what it is claimed to be.” Rule 11

- 6
901(B)(1 ). The auth entication of evidence may also be “ based on distinctive 7

characteristics [ such as ] appearance, contents, substance, internal patterns, or other 8
distinctive characteristics of the item, taken together with all the circumstances

. ” 9
Salehpoor
, 2019

- NMCA

- 046, ¶ 27 (internal quotation marks and citation omitted)

. 10

{24} Here, t he State proffered sev eral indicia of Child’s authorship of t he disputed 11
messages, including the presence of Child’s name and profile photo on the 12
exchanges , testimony from Erickson, the person who received the messages, and 13
strong contextual clues as to authorship revealed in the ir content. This evidence wa s 14
sufficient to support the district court’s finding that a reasonable juror could 15

determine that Child authored the messages and that the exhibits displaying the 16
messages were what the State claimed them to be. S ee Rule 11

- 901(A) (providing 17
that the authentication requirement is satisfied if the proponent “produce[s] evidence 18
sufficient to support a finding that the item is what the proponent claims it is”)

. 1918 {25} We start by acknowledging that the presence of what appe ar to be Child’s 1
name and photo on the February 25 messages was , standing alone, insufficient to 2
establish that the messages were issued by Child or from her account

. See State v

. 3

Acosta , 489 P.3d 608, 625 (Or. Ct. App. 2021), appeal dismissed and opin ion 4
vacated on other grounds, 504 P.3d 1178, ( Or. 2022) (concluding that the 5
appearance of Facebook messages that seemingly were sent from “an account that 6

bore [the] defendant’s name and included pictures that matched [the] defendant’s 7
physical appearance,” w ere “not dispositive” of the issue of authentication)

. 8

However, evidence of the appearance of social media messages, including 9
usernames and profile pictures, may be probative circumstantial evidence of 10
authentication when considered in conjunction with ad ditional factors of relevance. 11

See id. at 625

- 26 (identifying “[a] Facebook account matching [the] defendant’s 12
name and profile picture” as one of several factors that could prompt a reasonable 13
person to conclude that “it was [the] defendant and not one of [his cohorts] who was 14
sending messages from the [defendant’s] profile” ) ; Parker v. State , 85 A.3d 682, 688 15
n.43 (Del. 2014) (noting that a photo and profile name appearing on the printout of 16
a Facebook page “are certainly factors that [a] trial court may consider” in its 17
authentication analysis). 1819 {26} Here , the State provided additional foundational support through Erickson’s 1
undisputed testimony that he and Child had relied heavily, if not exclusively, on the 2
Facebook Messenger platform in conversing with each other during the weeks 3
leading up to the incident at issue here . As an active participant in those earlier 4
Facebook message exchanges, as well as the critical February 25 message exchange, 5

Erickson was clearly “ a witness with knowledge” of the Facebook me ssages within 6
the meaning of Rule 11

- 901(B)(1). As such, h e was well positioned to provide direct 7
testimony that the State’s exhibits accurately depicted the screenshots of the 8
messages he received not long after the incident. See Kays v. Commonwealth , 505 9
S.W.3d 260, 269 (Ky. Ct. App. 2016) (upholding the authentication of Facebook 10
messages attributed to the defendant where each message was introduced through 11
and identified by the person who sent or received it and “each one [was] linked t o 12
the witness introducing it by personal knowledge”)

. 13

{27} Not only did Erickson provide unchallenged testimony concerning his prior 14
course of dealing and history of communica tion on Facebook with Child
, he also 15

testified that he continued to follow postings ma de by Child on the same Facebook 16
account in the months between the car incident and the adjudicatory hearing. Thus, 17
Erickson’s testimony tend ed to establish that it was Child

— and not someone posing 18

as Child

— who communicated with Erickson in the February 25 messages. To the 1920 extent that Child suggested in her testimony that someone else may have had access 1
to her phone and authored the messages at issue, this was an assertion to be weighed 2
by the jury in its consideration of the evidence and not a bar to its admissibility. See 3

Jackson
, 2018

- NMCA

- 066, ¶ 19 (holding that the fact that text messages could have 4
been authored or received by someone other than the defendant did “not negate the 5
admissibility of the text messages, but rather present[ed] an alternative to the State’s 6
suggested inferences,” which would be for the jury to assess)

. 7

{28} Finally, the content and substance of the February 25 messages evince 8

“ distinctive characteristics ” offering foundational support for their authenticity

. See 9

Rule 11

- 901(B)(4) ( including “distinctive characteristics” among examples of what 10
will satisfy the authentication requirement)

. As we have said, a proponent of 11
evidence need not demonstrate authorship conclusively to satisfy the authentication 12
requirement ; to require otherwi se would be to impose a heightened standard of 13
admissibility o n this type of evidence. See State v. Candelaria
, 2019

- NMCA

- 032, ¶ 14

55 , 446 P.3d 1205 ( concluding that evidence was admissible because it was 15
“sufficient to permit a reasonable jury to believe” that it was what it purported to be 16
and stating that arguments weighing against authenticity “ went to the weight of the 17

evidence, not its admissibility ” ). In keeping with this principle , courts and 18
commentators widely agree that for a writing, digital or otherwise, to be sufficiently 1921 distinctive for authentication purposes
, “[t]he knowledge [of its contents] need not 1
be uniquely held by the purported signer [or sender], but the smaller the group of 2
persons with such knowledge, the stronger the desired inference of authorship.” 2 3

Robert P. Mosteller et al.
, McCormick on Evidence § 224, at 93 (8 th ed. 2020) . Thus, 4

social media c ommunications whose content s are known or knowable by only a 5
handful of persons are routinely recognized as qualifying for authentication on the 6

basis of their distinctive characteristics. See, e. g. , Sublet v. State
, 113 A.3d 695, 720

- 7

21 (Md. 2015) (upholding the authentication of Twitter messages that “ reference d a 8
plan ” for retaliation “ that had

. . . been created in response to events occurring that 9
same day” and was known by “only a small pool of [seven] individuals, ” including 10
the defendant); see also Acosta , 489 P.3d at 625 (concluding that the trial court e rred 11
in excluding Facebook messages that “included substance that was uniquely 12

associated with [the] defendant ” or only a very small group of people who were 13
using the account at the time ). 14

{29} T he exclusive focus of the messages at issue here was the car inci dent of the 15
previous night , with the person using Child’s profile initiating the discussion by 16
expressing remorse for actions that night and asking Erickson whether he had 17
reported the incident to the police. Given the short amount of time between the 18
incident and the Facebook Messenger exchange, a reasonable juror could have 1922 determined that the number of parties in possession of the infor mation revealed in 1

the communications was very small. 2

{30} The Court of Appeals concluded that the State’s circumstantial evidence of 3
authenticity was inadequate
, in part because the content of the messages was not 4
“sufficiently confidential to establish that only Child could have authored the 5

messages.” Jesenya O ., 2021

- NMCA

- 030 , ¶ 28 (emphasis added). Th is test applied 6
by the Court of Appeals is at odds with the flexible approach that the authentication 7
process envisions, under which the genuineness of a particular document

— whether 8
conventional or digital

— is assessed through reliance on reasonable inferences
, not 9
absolute certainty. See Jackson , 2018

- NMCA

- 066, ¶¶ 17

- 19 (concluding that the 10

state’s circumstantial evidence regarding the activity of two phone numbers was 11
sufficient to authenticate an exhibit with information regarding the phone numbers); 12

s ee also State v. Smith , 181 A.3d 118, 136 (Conn. App

. Ct. 2018) (rejecting the view 13
that “the state bore the insurmountable burden of ruling out any possibility that the 14
[Facebook] message was not sent by the defendant”); Acosta , 489 P.3d at 625

- 26 15
(“Even if it were possible that someone else sent the message s from the profile 16
matching [the] defendant’s name and picture, the evidence was sufficient for a 17
reasonable person to be satisfied that it was, in fact, [the] defendant who sent 18
them.”) ; cf. State v. Romero , 2019

- NMSC

- 007, ¶¶ 41

- 44, 435 P.3d 1231 (conclud ing 1923 that the “totality of the circumstances” surrounding a recording of an inmate’s phone 1

call was sufficient to authenticate a detective’s identification of the defendant as the 2
inmate on the call)

. Equally as important, such an approach fails to afford d ue 3

deference to the discretion of the district court , which is charged with determining 4
whether a preponderance of the evidence supports a finding of authenticity. See 5

Jimenez , 201 7

- NMCA

- 0 39 , ¶ 1 8 ( “ [ T ] here is no abuse of discretion when the 6

evidence is sh own by a preponderance of the evidence to be what it purports to be

. ” 7
(internal quotation marks and citation omitted) ). 8

{31} W here, as here, a proper foundation has been established under Rule 11

- 901, 9

it is for the jury to decide whether a particular person or entity was the author or 10
recipient of a given digital communication. In this regard, we endorse the 11

authentication procedures previously outlined by our Court of Appeals in Jackson
, 12

a case involving an exhibit displaying cellular text messages. 2018

- NMCA

- 066, ¶¶ 13

18

- 19. The Jackson C ourt , faced with a defense argument that it was “possible” that 14
persons other than the defendant authored the text messages in question, said: 15
It was for the jury to decide w hether [the d] efendant was the author or 16 recipient of the text messages in the exhibit

. . . . [ T he d] efendant’s 17 argument that the text messages in the exhibit could have been authored 18 or received by someone else, does not negate the admissibility of the 19 te xt messages, but rather presents an alternative to the State’s suggested 20 inferences. 2124 Id. ¶ 19. As Jackson instructs, Child’s argument
, premised on the possibility that 1
others could have sent the February 25 messages
, went to the weight of the evidence, 2

not its admissibility

. Id. Accordingly, it was for the jury to assess that argument in 3
determining, as an ultimate matter, whether the communications were authentic

. 4

{32} We hold t he appearance of the messages, the disputants’ frequent prior 5
Facebook Messenger communications, and the content of the messages, when taken 6
together and viewed in combination, were sufficient to support a finding that the 7
screenshots of those messages wer e, more likely than not, what they purpo rted to be. 8
Given the highly deferential nature of abuse of discretion review, there was no cause 9
to disturb the ruling made by the district court. 10

III. CONCLUSION 11

{33} Because we hold the district court reasonably could find that the State met its 12

low threshol d of proof in establishing prima facie the authenticity of the February 13

25 messages , we reverse the Court of Appeals’ determination on that issue and 14

reinstate Chi ld’s delinquency adjudications. 15

{34} IT IS SO ORDERED. 1625 1 BRIANA H. ZAMORA , Justice 2

WE CONCUR: 3

4 C . SHANNON BACON , Chief Justice 5

6 MICHAEL E. VIGIL , Justice 7

8 DAVID K. THOMSON , Justice 9

10 JULIE J. VARGAS , Justice 11