Does Possession of Memes Show Criminal Intent?–People v. Watts

This is a rape case. Law enforcement found the following items on the defendant’s phone (warning–explicit and offensive descriptions):

three photos with accompanying text, which the State argued expressed “the idea that a male has a right to have sexual relations with a female who is not consenting or who is unable to give consent.”

The first meme was a series of five photos depicting two men arguing [Eric’s comment: the iconic American Choppers meme], with the accompanying text:
“[MAN 1]: Why did you have sex with her?
[MAN 2]: She was lying there naked, what was I supposed to do?!
[MAN 1]: The autopsy, the f*** autopsy!
[MAN 2]: Don’t tell me how to do my job!
[MAN 1]: You are the worst vet on earth!”

The second meme depicted a photo of a sleeping woman, who appeared to have Down syndrome and whose upper body was bare. The accompanying text stated: “Women are like parking spots[.] Usually, the best ones are taken … so when no one is looking—stick it in the disabled one.”

The third meme depicted a photo of the actor Tom Cruise laughing with the text: “When she says don’t cum in me, but you already did five minutes ago and are smashing her with a floppy.”


The trial court admitted the memes into evidence. The appellate court affirms.

The majority first addresses authentication, concluding that memes obtained from a phone are “like any other form of documentary evidence.” That standard was met in this case.

The majority then addresses the defendant’s argument that he did not endorse, and was not responsible for, the memes. The court responds:

the purpose of seeking to admit the memes was not to establish defendant as the author, but to show the memes were on his phone and may have been viewed, sent, received, or otherwise generated while he was actively using his phone…

the State presented sufficient foundation evidence to show the memes “belonged” to defendant in that they were on his phone and created/modified at the same time as another identified conversation with Stein, all of which took place in close temporal proximity with the offense and two of the three sexual assaults admitted as propensity evidence

Note how majority thought it was sufficient that the memes “may have been viewed, sent, received, or otherwise generated” by the defendant. Really? “May have been” doesn’t really tell us very much, does it? It seems obvious to me that law enforcement should do a little more work to connect the dots. For that reason, a concurring judge says the memes should not have been admitted:

there was a complete absence of evidence showing how the memes got there or whether defendant had even seen them, much less agreed with them. The prosecutor argued that, while there was no evidence that defendant created the memes, “we all know if it’s on your phone, it’s on your mind.” In the first instance, this statement is simply not correct if the defendant had not seen the memes. But the more fundamental issue is whether we will permit any communication received by a person as evidence of what they were thinking or what they believe….

The evidence here, however, is simply that the memes were received on defendant’s phone, and mere receipt gives no insight into defendant’s thinking any more than a newspaper on one’s porch indicates agreement with everything printed in it

Nevertheless, the concurring judge says the admission was harmless error given the other evidence of guilt.

I’m with the concurrence on this one. If the defendant had shared the memes with third parties, or commented affirmatively in response to the memes (e.g., “ain’t that the truth!”), that evidence could be relevant to the defendant’s mental state. But mere possession of the memes, without any other evidence of the defendant’s engagement with the memes, doesn’t show that. If the memes are in his text messages, for example, it might just show that the defendant hangs out with people who have a repulsive sense of “humor.” To punctuate that point, my computer likely made thumbnail copies of them during my research for this post. Does the fact that the memes are now cached on my device reveal anything about my criminal propensity?

In writing this blog post, I kept thinking of the story from 15 years ago about the Kozinski server that was filled with tasteless memes. On the one hand, (former) Judge Kozinski should be free to have private conversations when he’s not wearing his judicial robes; on the other hand, it was always unseemly for a sitting judge to be connected to a server filled with edgy (at best) content. Based on his engagement with it (including the fact he admitted uploading some of the items), I think we had no problem attributing at least some of the server’s contents to Kozinski, though he survived the initial public criticisms for several more years before his behavior caught up with him.

Case citation: People v. Watts, 2022 IL App (4th) 210590 (Ill. App. Ct. Dec. 15, 2022)

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