EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, January 28, 2009

Used To Love Her: Florida Appellate Court Upholds Admissibility Of Google Searches In Murder Appeal

In its recent opinion in Barber v. State, 2009 WL 151026 (Fla.App. 5 Dist. 2009), the District Court of Appeal of Florida, Fifth District, rejected the defendant's argument that the trial court improperly allowed for the admission of Google searches recovered from his computer.  Unfortunately, the court neither stated that grounds for his appeal nor its reason for rejecting it.

In Barber, Justin Barber was convicted of first-degree murder with a firearm for the killing of his wife and sentenced to life in prison.  It was undisputed at trial that Barber and his wife were celebrating a belated third wedding anniversary in April 2002 on a desolate strip of beach located between Ponte Vedra and St. Augustine.  According to Barber, his wife and he were accosted by an unknown assailant as they walked along the ocean, the assailant shot and killed his wife at the surf's edge, and Barber dragged her body to the dune walkover before going for help.  But according to the State, Barber half-drowned his wife in the ocean, then dragged her to the end of the dune walkover, where he shot and killed her.

The State's theory was bolstered by its investigation, which revealed that

     (1) a $2 million life insurance policy covering the lives of both Barber and his wife had been obtained the year before;

     (2) in the months prior to the murder Barber had conducted a Google searches of terms such as "trauma, cases, gunshot, right chest" and "Florida & divorce;"

     (3) Barber had several affairs during his marriage, including a few months prior to the murder;

     (4) on the day of his wife's death, Barber downloaded the Guns N' Roses song "Used to Love Her (But I Had To Kill Her)" Guns N' Roses entitled “Used to Love Her (But I Had To Kill Her)."

After Barber was convicted, Barber appealed, claiming, inter alia,

     "that the trial court erred in denying his motions in limine directed at precluding the State from introducing evidence of (a) his extramarital affairs; (b) his computer search of the terms mentioned; and (c) the $2 million life insurance policy insuring the lives of Barber and his wife."

Unfortunately, the opinion in Barber did not explain how Barber claimed that these pieces of evidence were inadmissible, and the court simply affirmed the trial court's rulings "without further discussion."  Filling in the first and third blanks, I would guess that Barber claimed that any probative value that the insurance policy and extramarital affairs had on the issue of his motive under F.S.A. Section 404(b) was substantially outweighed by the danger of unfair prejudice, making the evidence inadmissible under F.S.A. Section 90.403.  Unfortunately, the brevity of the court's opinion doesn't give me the ability to address this issue with much detail, but I think it suffices to say that both of these pieces of evidence would potentially be strong evidence of motive.

Next, with regard to the Google searches, I would guess that Barber claimed that they were inadmissible hearsay.  But even if these were "statements" by him offered by the prosecution to prove the truth of the matter asserted, they were the statements of a party opponent -- the criminal defendant -- and thus admissible under F.S.A. Section 90.803(18)(a).  Indeed, similar internet searches have been deemed admissible in the recent Jensen trial from Wisconsin and a few other trials mentioned by cnet in an article on the case.



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