Circumstantial Authentication Strikes Again in a MySpace Evidence Case — State v. Tienda
[Post by Venkat Balasubramani]
Tienda v. Texas, 358 S.W.3d 633 (Tx. Ct. Crim. App.; Feb. 8, 2012)
This is another MySpace evidence case.
Defendant was convicted of murder. The victim exchanged words with a group of people outside a nightclub, and when he left to go to another club, his car came under fire from a “caravan of two or three cars.” The defendant was a passenger in one of the cars. While there was no dispute that the defendant was in one of the cars, the testimony as to his actual involvement in the shooting varied widely. The weapons evidence was also inconclusive.
At trial, the State sought to admit evidence of three MySpace profile pages purportedly created by the defendant. The MySpace pages contained quotes apparently boasting about the killing and contained a link to a song that was played at the victim’s funeral. The profiles also contained photos of the defendant, and were created with profile information that witnesses testified was likely to be associated with the defendant (the age and location of the profiles matched the defendant and the email addresses contained his nickname or last name). As part of the profiles, the state also sought to admit evidence of instant message conversations exchanged between the account-holder and others—these conversations included references to the other passengers present at the incident, details regarding the State’s investigation, and threats to individuals about “snitching.”
The state did not present any evidence from MySpace tying the three profiles to the defendant:
[t]here was no testimony elicited at . . . trial, however, and nothing on the face of the on-page subscriber reports themselves, to explicitly indicate whether any of the three User #s are [defendant’s] or whether any of the three Sign up IP numbers corresponds to a computer either belonging to [defendant] or to which he had access.
(See Fn. 4.) Instead, the State presented evidence from the victim’s sister as to how she came across profiles. The State also presented evidence from a “gang unit officer” regarding “common use of social networking media . . . by gangs to stay in touch with members and to ‘promote’ their gangs by bragging about participation in gang-related activities.” The trial court admits the evidence over a defense objection as to authenticity.
On appeal, the court acknowledges the challenges presented by the authentication of electronic evidence, and also acknowledges that social networking and electronic evidence presents special authenticity challenges. Nevertheless, the court notes that other jurisdictions have blessed “circumstantial authentication,” where communications contain information that only the purported sender would know, or otherwise tend to indicate authenticity.
The court says that sufficient circumstantial indicia of authenticity is present here. The profiles contained photos of the defendant, and they used names that the defendant was commonly known by. Most importantly, the court points to the communications in question surrounding the incident and the State’s investigation. In the courts view, the combination of the (1) photos of defendant; (2) the reference to the incident, including music that was played at the victim’s funeral; (3) references to a gang that defendant was reportedly a member of; and (4) the details contained in the communications, were all sufficient circumstantial evidence to warrant admission of the profiles.
The court notes that the intermediate court of appeals relied on a Maryland decision that endorsed circumstantial authentication in a similar context but that this decision had since been reversed. (Here is a prior blog post on Griffin v. State, discussed in the court’s opinion: “Maryland Supreme Court Rejects “Circumstantial Authentication” Standard for MySpace Evidence — Griffin v. Maryland.”) The court in this case distinguishes Griffin on the basis that there is “far more circumstantial indicia of authenticity in this case than in Griffin.”
The circumstantial authentication allowed in this case is slightly different from the type of authentication allowed by the Maryland appeals court in Griffin in that it relies on the nature of communications (rather than profile attributes) to conclude that there is sufficient indicia of authenticity. On the other hand, it’s also different from the standard used by the Massachusetts Supreme Court when it allowed circumstantial authentication of email evidence. In the Massachusetts case, there was evidence that the defendant used the account in question and knew the password. (See “Massachusetts Supreme Court Finds Email Sufficiently Authenticated Based on Surrounding Evidence — Commonwealth v. Purdy.”) The evidence in this case is still entirely second-hand–from the victim’s sister who saw the profiles in question (on the internet). The court acknowledges the possibility that someone who knew the defendant could have created the profiles and sent the messages in question. Nevertheless the court allows admission of the profile evidence.
Related: Survey: social media evidence soaring in court cases (Jeff John Roberts)