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Monday, October 19, 2009

Ind. Decisions - Still more on "Indiana High Court Allows MySpace Entry As Evidence In Murder Trial"

In Thursday's Supreme Court decision in Ian J. Clark v. State, the Court wrote:

One of his trial objections does pose a novel question: should the trial court have permitted the State to offer into evidence Clark’s entry from the social networking website MySpace? We hold that this electronic evidence was admissible, and we affirm Clark’s conviction and sentence. * * *

Clark contends the trial court abused its discretion when it admitted evidence of his MySpace posting. Clark claims this was inadmissible character evidence, citing Indiana Rule of Evidence 404(b) * * *

We conclude that the trial court properly admitted the evidence of Clark’s MySpace page. Clark’s posting contained only statements about himself and in reference to himself. Thus, the State is right to observe that this is solely evidence of his own statements, not of prior criminal acts. It was Clark’s words and not his deeds that were at issue, so Rule 404(b) does not apply.

The ILB summarized the opinion here. In any entry the next day, Oct. 16th, the ILB noted that although the WSJ Law Blog had reported on the opinion, their analysis wasn't up to their usual standards. I added:
By my reading, there is nothing particularly newsworthy about the opinion. Thoughts?
Later that day, the ILB reported that a story from the Fort Wayne Journal Gazette ended on much the same note:
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.”

A story for the Oct. 19th National Law Journal, by Amanda Bronstad, is similar to the earlier reports. However, it concludes with a quote from the Indiana Attorney General's office:
"The decision affirming Clark's conviction and sentence speaks for itself, and we agree with the Indiana Supreme Court that Clark's MySpace entries were admissible at his murder trial," said Bryan Corbin, a spokesman for the Indiana attorney general's office. "The result appeared clear from the simple application of long-standing Indiana law that has been applied to letters, diaries, phone and personal conversations, etc. In our view, there was really no reason to treat a MySpace page differently
Okay, so there we are. Except that, as Prof. Berner noted, "the format is different." And the AG says this is really no different than a diary. In some ways that is true. But one can hold the actual diary and introduce it in evidence and read from its pages. With MySpace, the actual "diary" is online. And it may change at any time, often leaving no trace .

That point was raised by two individuals on Friday. The first commented to the WSJ Law Blog entry:

How did the Indiana Court determine that the killer was the person who physically typed that entry and posted it to MySpace?
The second answered the ILB's request for "your thoughts" by writing:
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.
Check out this article by Ronald J. Levine and Susan L. Swatski-Lebson, titled "Social Networking And Litigation," in the January 2009 issue of e-Commerce Law & Strategy. From p. 3:
Courts weighing the admissibility of Web site postings, e-mail and instant messages are generally holding that these communications can be admissible provided the following two conditions are met:
1. Unless they are admissions or are subject to another exception, the content cannot be offered for the truth of the matter asserted. This is because Web site postings are considered out of court statements; thus they may be subject to a hearsay

2. The proponent must offer direct or circumstantial evidence as to the content’s authenticity.

Authentication objections arise because it is possible to create a Web page on a social networking site in another person’s name or to send an e-mail or post a message in another’s name. Therefore, it is difficult to show who actually is responsible for creating material on the Internet. * * *

Practice points regarding authenticating content from a Web page include:

  • Provide testimony from the person who obtained the copy of the Web page, stating when and how it was copied and affirming that the copy is accurate;
  • Subpoena documentation directly from the social networking site provider; and
  • Offer evidence that the purported author of a Web page actually wrote it. The normal methods of proving authorship apply to Internet material and include:
    1. an admission by the author;
    2. .testimony of a witness who assisted or observed the creation of the Web page;
    3. evidence of similarities between the contested Web page and an authenticated Web page;
    4. content on the Web page that connects it to the author; and
    5. stipulation.
In Clark, the Court states at p. 4:
It seems that Matara had helped Clark create his own personal entry on MySpace, the social networking website. Clark testified in his own defense, and the prosecutor read to Clark, over defense counsel’s objection, his own description of himself ...
There is no discussion of authentication.

Finally, going back again to issues other than authentication, the EvidenceProf Blog's David Leonard wrote Oct. 15th under the headling "Supreme Court of Indiana Seemingly Errs in Deeming MySpace Evidence Admissible In Murder Appeal." Check his entry for his argument. It concludes: "Clark did not inject the issue of character into his trial, and the prosecution should have been precluded from presenting evidence from his MySpace Page at trial."

Posted by Marcia Oddi on October 19, 2009 08:50 AM
Posted to Ind. Sup.Ct. Decisions