Thursday, June 3, 2010
It's My Space, That's Why They Call It MySpace, Take 5: Maryland Court Applies Rule 901(b)(4) To Resolve MySpace Authentication Issue
A defendant is charged with second degree murder, first degree assault, and use of a handgun in the commission of a felony or crime of violence. At the defendant's first trial, a witness testifies that he did not see the defendant pursue the victim into the bathroom (where he died) with a gun. The first trial ends in a mistrial, and, at a second trial, the witness changes his testimony and testifies that the defendant was the only person in the bathroom, other than the victim, when the fatal shots were fired. The witness claims that he fabricated his testimony at the first trial because the defendant's girlfriend threatened him. To corroborate this claim, the prosecution introduces into evidence a redacted printout obtained from a MySpace profile page allegedly belonging to the defendant's girlfriend, which said, in part: "JUST REMEMBER, SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" The defendant is thereafter convicted. Was that page properly admitted, and how can parties generally authenticate MySpace pages and comments as belonging to a particular person? Those were the questions addressed by the Court of Special Appeals of Maryland in its recent opinion in Griffin v. State, 2010 WL 2105801 (Md.App. 2010).
The facts in Griffin were as stated above, with Antoine Griffin being the defendant, Jessica Barber being his girlfriend, and Darvell Guest being the victim. On appeal, the state claimed that the MySpace page and comment were properly authenticated under Maryland's counterpart to Federal Rule of Evidence 901(b)(4), Maryland Rule of Evidence 5-901(b)(4), which indicated that evidence can be authenticated by
Circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.
the State point[ed] to the content of the profile, which included Ms. Barber's photograph, her date of birth, and the references to her children. Further, it assert[ed]:
Three other considerations support the trial court's determination that the State had offered sufficient authentication evidence. In her testimony, Barber confirmed that Griffin sometimes went by the nickname "Boozy," the name used on the MySpace page. Additionally, Sergeant Cook's testimony should be deemed sufficient given that a MySpace website is a personal profile containing text and image content supplied not by MySpace itself, but rather by the site's individual users. The judge, moreover, provided a detailed limiting instruction clarifying the purpose for which the statement could be used and emphasized that the MySpace page should be afforded only "such weight as [the jurors] choose to give it."
The Court of Special Appeals of Maryland acknowledged that "the authentication concerns attendant to the use of evidence printed from a social networking Web site such as MySpace is a topic on which there is no Maryland precedent and scant case law from other jurisdictions." That said, the court noted that the leading case on the issue of authentication of electronic evidence is Lorraine v. Markel Am. Ins. Co., 241 F .R.D. 534 (D.Md.2007), in which the court noted that electronically stored information, including e-mails, text messages, chat room logs, and "Internet Website Postings" "may require greater scrutiny than that required for the authentication of 'hard copy’ documents,[ ]" but suggested that the existing rules governing authentication provide an adequate analytical framework to determine the admissibility of such evidence. The court noted that the Lorraine court then cited Federal Rule of Evidence 901(b)(4) as "one of the most frequently used to authenticate e-mail and other electronic records."
Relying upon Lorraine and similar opinions, the Court of Special Appeals of Maryland thus found that there was sufficient authentication of the MySpace page and comment, concluding,
The MySpace profile printout featured a photograph of Ms. Barber and appellant in an embrace. It also contained the user's birth date and identified her boyfriend as "Boozy." Ms. Barber testified and identified appellant as her boyfriend, with the nickname of "Boozy." When defense counsel challenged the State to authenticate the MySpace profile as belonging to Ms. Barber, the State proffered Sergeant Cook as an authenticating witness. He testified that he believed the profile belonged to Ms. Barber, based on the photograph of her with appellant; Ms. Barber's given birth date, which matched the date listed on the profile; and the references in the profile to "Boozy," the nickname that Ms. Barber ascribed to appellant.....
On the record before us, we have no trouble concluding that the evidence was sufficient to authenticate the MySpace profile printout. Therefore, the trial court did not err or abuse its discretion in admitting that document into evidence.