Exclusion of MySpace Evidence in Gang Related Murder Trial

A Defendant in a gang related murder and assault case sought to introduce evidence of the victim’s sister’s MySpace page to show the victim’s violent nature toward a rival gang; a propensity for violence; and that the victim started the fight that ended in his death.  People v. Williams, 2010 Cal. App. Unpub. LEXIS 1251, at *23 (Cal. App. 2d Dist. Feb. 23, 2010). 

The Court excluded the MySpace profile as evidence. 

The Sister’s MySpace Profile

The victims were brother and sister.  The brother was killed in a gun fight with the Defendants. 

The sister’s Myspace profile contained a series of photos (or video, the opinion is not clear) of the siblings dressed as rival gang members.  The MySpace evidence depicted the brother pretending to punch the sister and her falling to the ground.  Williams, at *23. 

The MySpace evidence was described as a videotape of the profile.  Id.  This implies that a video camera was set to record the profile.  It is also highly possible the profile contained video and it was collected as a video file. 

One of the Defendants tried to use the video to show the victim was violent toward members of the rival gang.  Williams, at *23.  The State objected to the video evidence on both foundational and relevancy grounds.  Id.

The victim’s sister testified on cross-examination that the MySpace profile only contained “a picture of me and my brother, not us taking it as being a gang picture.” Williams, at *23-24. 

The Trial Court excluded the MySpace evidence pursuant to California Rule of Evidence Code section 352 (The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury, Cal Evid Code § 352 (2010)).  Williams, at *24.

The Trial Court explained the evidence did not show any crime taking place.  The Trial Court stated: 

 “[T]his is playacting. It is no different than Marlon Brando shooting the Godfather or something. Would that show a propensity to commit violence? No. So I am not going to allow it. I think it is irrelevant.”

Williams, at *24.

Appealing the MySpace Ruling

The Defendant claimed the exclusion of the MySpace evidence violated his Federal Due Process rights.  Williams, at *24.

The Court of Appeals held that the Trial Court did not abuse its discretion or violate any Constitutional rights in excluding the MySpace evidence.  Williams, at *25.

The Court of Appeals explained the videotape would have been repetitive of testimony and other evidence.  Williams, at *25.  As such, excluding the MySpace evidence of the victim playacting did not violate the Defendant’s Constitutional rights.  Id.

Bow Tie Thoughts

This unreported opinion leaves interesting web-collection questions that are not explored or fully explained in the decision.  While the Prosecutor did question foundational issues in the “videotape” of the MySpace profile, the exact collection methodology is not described.   

It is possible the Defendant actually used a video camera to record someone examining the profile.  It is also highly possible a screen capture tool was used to record the MySpace profile.  This would make sense if there was an embedded video on the profile, thus creating a video exhibit.  The resulting video capture might have then simply been called a “videotape” by the Court, instead of a MPEG file or other digital video file format.

The opinion also illustrates how social networking profiles can find themselves in litigation.  In this case, the Defendant attempted to use the profile as a defense.  There are situations where a social networking profile could be offered for impeachment, party admissions or non-party witness statements.

Attorneys should be aware social networking sites might contain relevant evidence supporting a claim or defense.  If there is relevant evidence, the party offering the evidence needs to address the basic admissibility requirements to authenticate the social networking evidence. 

Conversely, a party cannot simply mine social networking profiles in the hopes of making an opposing party look bad.   Evidence must to be relevant to be admissible.

5 thoughts on “Exclusion of MySpace Evidence in Gang Related Murder Trial

  1. Interesting question would be if a criminal defendant posted a video the DA claimed amounted to a “reenactment” of a crime they were alleged to have committed. Would that be probative/relevant evidence of his or her guilt under this analysis? Somehow I think the result in that case would be different.

  2. Pingback: Exclusion of myspace evidence in gang related murder trial | Gabe's Guide to the e-Discovery Universe

  3. With the emphasis on social networking by so many users around the world Internet based evidence is becoming more acceptable by the courts. However, authentication as with any evidence is still required. The problem becomes one of documentation of Internet evidence in a manner that will be acceptable to the courts. Evidence collected from the Internet is digital evidence and should be treated as such. Digital evidence, as we know from the field of digital forensics, has for years had court accepted methodologies for its introduction. The process includes the proper collection, the proper preservation and the proper presentation. It is done so through logging user actions, collecting the evidence and date and time stamping it and hashing the saved digital files. Lastly in the process is the presentation of the collected Internet evidence in a manner usable by the attorneys and the courts. The courts have already described this in the Maryland Fed District case Lorraine vs. Markel American Insurance.

  4. I am a retired attorney, prosecutor and state magistrate who, for nearly 20 years, taught federal agents how to lawfully collect, preserve and present digital evidence in Federal Court criminal cases. I’d like to echo the comments by Todd Shipley about how important digital evidence scattered across the global Internet is in making cases (both from the perspectives of the prosecution and defense). Todd is an experienced trainer in this field and it is important to note that he currently leads the globe’s largest high technology investigators association. Validating the authenticity of digital evidence *and* I should add importantly, legally attributing such evidence to any specific actor is *critical* to doing justice and insuring the integrity of the fact finding process we call criminal trials. We must always remember that due process demands far more than simply presenting captured 0’s and 1’s and presenting them in court. Kevin Manson, retired senior instructor, Federal Law Enforcement Training Center, Department of Homeland Security http://www.fletc.gov

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