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Friday, October 16, 2009

Ind. Decisions - More on "Indiana High Court Allows MySpace Entry As Evidence In Murder Trial" [Updated]

Updating the ILB entry from earlier today where I wrote "By my reading, there is nothing particularly newsworthy about the opinion," Rebecca S. Green's story today in the Fort Wayne Journal Gazette addresses that point. (I should have waited.) Some quotes:

The Indiana Supreme Court has upheld the conviction of a 36-year-old Kosciusko County man accused of beating to death his girlfriend’s 2-year-old daughter in 2007, ruling that statements made on social networking sites can be used to illustrate a defendant’s character. * * *

Clark appealed his conviction and life sentence, protesting the prosecution’s use of his MySpace page to show his character. That evidence was inadmissible, Clark argued, citing Indiana’s rules of evidence.

But the Supreme Court disagreed Thursday, saying that after Clark climbed into the witness stand and opened his mouth to argue he was not guilty of murder but rather reckless homicide, he allowed prosecutors to use his MySpace ramblings to rebut his character.

“Once Clark took the stand to testify along these lines, it was proper to permit the prosecution to confront Clark with his own seemingly prideful declarations that rebutted his defense,” Supreme Court Chief Justice Randall T. Shepherd wrote. “Clark’s MySpace declarations shared much with his boast to the police after he killed Samantha: ‘It’s only a C Felony. I can beat this.’ ”

Typically, statements about the character of the accused are not admissible under the state’s rules of evidence, said Bruce Berner, Seegers Professor of Law at Valparaiso University. But when the defendant makes his or her character an issue through their own statements, then evidence to the contrary can be used by prosecutors, Berner said.

Social networking sites such as MySpace and Facebook are being used in many instances to learn more about individuals, such as by employers researching potential employees.

This is just the next logical step in that, Berner said.

And using the statements on the MySpace page is no different than using statements made from the defendant to an actual person, Berner said.

“This case is not at all unusual because of the law,” Berner said. “Except this guy spouts off on a MySpace page instead of to a guy at a bar. … The format is different, … but other than that, this is classic prosecution rebutting a defendant who put his own character at issue.”

[More] A comment just posted to the WSJ Law Blog entry asks:
How did the Indiana Court determine that the killer was the person who physically typed that entry and posted it to MySpace?
Good point, but I'd guess the issue wasn't raised.

[Updated] I just received this great comment (IMHO) from an ILB reader:

Dear Ms. Oddi:
You invited comments about the MySpace holding from earlier this week. I care little or nothing about the ER 404(b) admissibility of the page content. What alarms me is that the opinion will be read as precedent that web page content is somehow self-authenticating. Even if there was no objection below based on foundational authenticity, there should have been at least a footnote in the opinion acknowledging the need to authenticate such evidence.

Posted by Marcia Oddi on October 16, 2009 11:23 AM
Posted to Ind. Sup.Ct. Decisions