Thursday, March 6, 2008
It's My Space. That's Why They Call It MySpace: Judge Finds Statements On Defendant's MySpace Page Are Inadmissible Hearsay
An Indiana judge has ruled that statements posted on a person's MySpace page are inadmissible hearsay. On Tuesday, Benjamin Pomeroy was found guilty after a bench trial of two counts of class C felony operating a vehicle while intoxicated causing death. In September 2005, Pomeroy allegedly drove into a tree on the way to a BW3, killing passengers Todd Pratt and Jason Prater. After the accident, it was determined that Pomeroy had a blood-alcohol level of .18 percent, well over the legal limit of .08 percent. Pomeroy denied the allegations, and while the articles on the case are unclear, it appears that he admitted being in the car but denied being the driver.
That defense was difficult to prove, however, because Pomeroy's foot was apparently severed in the accident and discovered in a tennis shoe wedged between the brake pad and the accelerator. Emergency responder Scott Erickson also testified that when he came upon the car wreck, he saw Pomeroy hanging halfway out of the car with his pant leg caught in the driver's side door. Of course, this evidence was sufficient to lead to Pomeroy's conviction, but the prosecutor also wanted to prove Pomeroy's guilt through allegedly incriminating statements that Pomeroy posted on his MySpace page. The judge, however, found that these statements were hearsay without proof that Pomeroy actually created the page. The judge accepted defense counsel's argument that "[e]ven with code numbers and other security measures..., other can create a Web site under an assumed name."
First, the judge was wrong because this was not a hearsay issue, but an authentication issue. Assuming that the incriminating MySpace post was made by Pomeroy, it was an admission, making it non-hearsay under Indiana Rule of Evidence 801(d)(1). Thus, the only issue was whether the evidence at issue was what the prosecution claimed it to be, an incriminating post by Pomeroy, an issue to be resolved under Indiana Rule of Evidence 901(a). Rule 901(a) contains a liberal rule for authenticating tangible evidence under which evidence is authenticated as long as the proponent presents "evidence sufficient to support a finding that the matter in question is what its proponent claims."
Of course, that leaves the question of whether the MySpace posts were properly authenticated as posts by Pomeroy, and it is unclear from the articles how the prosecutor sought to authenticate the posts. It also appears that no court has addressed the issue of how MySpace pages/posts can be authenticated. In the e-mail context, however, courts have found that "[e]-mail communications may be authenticated as being from the purported author based on an affidavit of the recipient; the e-mail address from which it originated; comparison of the content to other evidence; and/or statements or other communications from the purported author acknowledging the e-mail communication that is being authenticated." Fenje v. Feld, 301 F.Supp.2d 781, 809 (N.D. Ill. 2003).
So, e-mails can be authenticated solely based upon the e-mail address allegedly belonging to the alleged author. That leaves the question, which I am unable to answer based upon my MySpace naivete: Should the same standard apply to a post on a MySpace page allegedly belonging to the alleged author?