MySpace Evidence: Maryland Appeals Court Allows Circumstantial Authentication — Griffin v. Maryland

[Post by Venkat]

Griffin v. Maryland, Case No. 1132 (Md. Ct. App.) (May 27, 2010) [pdf]

Facts: Defendant Griffin was convicted of murder. The first trial ended in a mistrial. The underlying facts were that the defendant allegedly got into an argument with the victim at a party, pursued the victim into the bathroom, and shot him.

At the first trial, one of defendant’s cousins (Gibbs) testified that the defendant was standing right next to Gibbs, and that defendant did not enter the bathroom. On retrial, Gibbs changed his testimony and testified that he saw the defendant pursue the victim into the bathroom.

In order to explain the discrepancy in Gibbs’s testimony, the prosecutor argued that the defendant’s girlfriend Jessica Barber “had threatened [Gibbs] before the first trial.” In connection with this argument, the prosecution offered Ms. Barber’s MySpace profile page which contained the following blurb:

FREE BOOOZY!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!

Ms. Barber was not called to authenticate the MySpace page. The prosecution instead called a police officer who testified that he visited the website on December 5, 2006, the date on the printout of the page.

The Court’s Ruling: Defendant argued that “the State came nowhere near authenticating the contents of the MySpace page as statements by Barber.” The prosecution argued that the foundational evidence was sufficient to support “a reasonable inference by the jury that the printout was what it purported to be – Jessica Barber’s MySpace website.”

The court walks through the rules for authentication, includes an obligatory reference to articles about the growth and increased use of social networking profiles, and cites to a slew of law review articles on the evidentiary issues arising from the use of “social media networking site” evidence. The court also acknowledges that “users of social media Web sites, blogs, chat rooms, and discussion forums may post messages anonymously or under pseudonyms.” Finally, the court notes the distinction between admitting MySpace “messages” and chat logs on the one hand, and admitting the profile printout on the other hand.

The court’s ultimate conclusion?

We see no reason why social media profiles may not be circumstantially authenticated in the same manner as other forms of electronic communication – by their content and context . . . . 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.

The court rules that the profile printout was properly admitted and rejects defendant’s arguments that the printouts should have been authenticated “either by the author or [by] expert information technology evidence.”

Commonwealth v. Williams: In contrast to the approach taken by the court in Griffin, the Massachusetts Supreme Court recently held in Commonwealth v. Williams that MySpace messages were not sufficiently authenticated, absent technical evidence. Williams involved MySpace messages introduced – also in an alleged witness intimidation scenario – to explain a witness’s reluctance to testify and why she may have feigned lack of memory. The prosecution alleged that the defendant’s brother sent the witness intimidating messages through MySpace, and offered the messages as evidence. The prosecution offered the testimony of the witness (who received the messages), who testified that the sender was the defendant’s brother, that “he had a picture of himself on his MySpace account, and that his MySpace name was ‘doit4it.’”

The court found that the messages were not properly authenticated:

while the foundational testimony established that the messages were sent by someone with access to [the sender's] MySpace Web page, it did not identify the person who actually sent the communication. Nor was there expert testimony that no one other than [the sender] could communicate from that Web page.

Although the court held that the messages were improperly admitted, the court concluded that this was harmless error.

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With the caveats that federal courts vary in their treatment of webpage authentication (as discussed in this law.com article), and the rules of evidence from Maryland and Massachusetts (rather than the federal rules) were at play here, there are two potential problems with the approach taken in Griffin.

First, even though the court extensively surveys secondary sources, and acknowledges that when it comes to social networking profile evidence, the concern arises that “someone other than the alleged author may have accessed the account and posted the message in question,” the court nevertheless concludes that “individualization [of a profile] may lend itself to authentication of a particular profile page as having been created by the person depicted in it.” This ignores the reality that public profile pages – which as the court notes are intended for the world to see – can be readily copied (or scraped, or aggregated) by anyone, personalized details and all. A random third party could have copied Ms. Barber’s profile verbatim, and could have added on whatever details he or she wanted.

Second, the prosecution didn’t question Ms. Barber on the profile page. It relied on the testimony of a police officer who accessed the webpage over the internet (??). There’s a simple way to authenticate profile evidence – (1) present the testimony of the profile owner or (2) present the testimony of the company whose service is used to create the profile. Here, neither was done, and the court takes at face value the fact that the webpage accessed by the police investigator was actually Ms. Barber’s profile page.

Williams takes a more restrictive approach and finds that the evidence was not sufficiently authenticated, even though the evidence in question was a “message,” which the recipient testified that she received. As between the message evidence in Williams and the profile evidence in Griffin, the message evidence from Williams stands head and shoulders above, in terms of authentication. The court in Williams still said no.

I’m surprised there was no discussion of any other evidentiary issues (e.g., hearsay, relevance) by either the parties or by the court.

One thing is for sure, judging from the quantity of cases that involve MySpace evidence in criminal cases, MySpace is fertile ground for prosecutors. As the court notes (quoting from an article), “[i]t should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.” The same goes for courts too!

Added: Evan Brown has a post about a recent California criminal case which highlights the pitfalls of relying on a weak authentication standard when admitting this type of evidence. The case was brought against a man who “set up a bogus MySpace profile of his former church pastor . . . suggest[ing] the pastor used drugs and was gay.”

[h/t Adam Greivell]

Related post: “MySpace Profile Evidence Inadmissible to Show Defendant Committed ‘Gangster Style’ Robbery