The Indiana Supreme Court addressed a "novel question" last Thursday in ruling that prosecutors properly introduced electronic evidence from an accused murderer's MySpace page. ( Case )
The defendant had contended that the trial court abused its discretary authority when it admitted evidence of his MySpace postings, claiming it was inadmissible character evidence, citing Indiana Rule of Evidence 404(b). The Court, however, concluded the admission was proper, because "evidence is excluded under Rule 404(b) when it is introduced to prove the 'forbidden inference' of demonstrating the defendant's propensity to commit the charged crime," [ Camm v. State, 908 N.E.2d 215 (Ind. 2009)]. Further, the Court said, "Otherwise inadmissible evidence may be admitted where the defendant opens the door to questioning on that evidence. [ Jackson v. State, 728 N.E.2d 147 (Ind. 2000)]. The door may be opened when the trier of fact has been left with a false or misleading impression of the facts."
Law enforcement authorities in recent years have increasingly used social networking sites and Internet service providers to introduce evidence in more common cases, such as assault, battery and murder, Marc Zwillinger, head of the Internet, Communications and Data Protection Group at Sonnenschein Nath & Rosenthal, said in a Law.com article this morning.
Two years ago, the Indiana Law Blog had commented that “Discovery of electronic evidence has been in the news in recent months, but little has been written about the admissibility of electronic evidence. This may be changing. Encouraging the change is the May 4, 2007 opinion issued by U.S. Magistrate Judge Paul W. Grimm in the case of Lorraine v. Markel American Insurance Co. … (which is) not only a review of the requirements for admitting electronic evidence under the Federal Rules of Evidence, but a practical discussion of some of the technology and document management issues raised by those requirements, such as hash values and other indicia of authenticity, metadata and collection techniques."
The American Bar Association's Litigation News Online last year posted that "As more and more people post personal information on social networking sites such as Facebook.com, Myspace.com, and even Match.com, attorneys are increasingly seeking discovery of such evidence, which is becoming commonplace in civil and criminal trials." That article mentions two cases that dealt directly with social website evidence: Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc., in which the defendant in a sexual harassment case sought to compel production of emails from two MySpace.com accounts, arguing that the plaintiff sent private messages on MySpace "to facilitate the same types of electronic and physical relationships she characterized as sexual harassment in her Complaint"; and Ohio v. Gaskins, where the defendant, charged with statutory rape, sought to introduce evidence that the victim held herself out on MySpace.com as an eighteen-year old. The trial court admitted photographs of the victim that had been posted on her site, and allowed a witness to testify as to the authenticity of the photos."
Both of those sites have links which are still active containing more information for those interested.
Additionally, Electronic Discovery Navigator : An eDiscovery Blog: Negotiating the Treacherous Sea of Electronically Stored Information (ESI) has had material relating to the admissibility of electronic evidence.