The “I was on MySpace” Alibi

In an unplublished criminal appeal over a jury instruction that the Defendant failed to explain or deny evidence, the Appellant-Defendant claimed as his alibi that he was playing poker on MySpace at the time of the crime. 

The Prosecutor claimed the “MySpace Alibi” was implausible or bizarre.  People v. Calderon, 2010 Cal. App. Unpub. LEXIS 7172, at *5-6 (Cal. App. 2d Dist. Sept. 9, 2010).

The Court of Appeals disagreed, finding the alibi was neither implausible or bizarre.  Calderon, at *6. 

The MySpace records showed that someone was logged into the Appellant-Defendant’s account at the time of the crime.  The Appellant-Defendant claimed he did not share his account information with anyone. 

In the words of the Court: “There is nothing implausible or bizarre about this alibi.”  Calderon, at *6.

Now for the big “however”:  The Court of Appeals found there was no ” reasonable probability that appellant would have received a more favorable verdict if the instruction had not been given.”  Calderon, at *6. 

The jury instruction given was not an “adverse inference” instruction, only that the Defendant failed to explain or deny evidence, plus some favorable instructions for the defense.  Id. 

Given the strong evidence against the Defendant, the Court of Appeals found that the instruction given was harmless.  Calderon, at *6-7.

The second big “however”: The MySpace Alibi was not compelling.  The Court noted that anyone could have logged into MySpace for the Defendant or he could have logged in from another location.  Calderon, at *7.

Bow Tie Thoughts

The “Social Media” age has people connected online continuously.  It is not a surprise someone claimed they were on a social networking site as alibi.  If there was a case with compelling evidence, there might be more detailed evidence presented, however, the fact there was MySpace evidence in Calderon is impressive. 

There is a courtroom drama waiting to erupt in a brutal cross-examination over whether someone was on Facebook on their iPhone or at home when the “Social Media” alibi is next offered.  There likely would need to be forensic analysis on both the personal computer and SmartPhone in determining the truth.    IP and ISP evidence would likely be used for impeachment or rehabilitation of a witness.  

Attorneys need to consider what to do when someone makes an argument such as the above.  What discovery needs to be sought?  What sort of expect is required?  Where is the data?  Will there be third-party discovery from social networking site? 

I also wager it is a matter of time before someone tries a Chat Roulette defense. 

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