MySpace Makes the Case: Texas High Court Affirms Admission of Defendant's Postings in Murder Trial
Media Law Bulletin
In a case where the identity of the killer was not established by other evidence, the Texas Court of Criminal Appeals has ruled that the web pages on a social networking site allegedly created by the defendant were sufficiently self authenticating such as to allow their admission even without any testimony directly linking the defendant to the account in question. Tienda v. State, ___ S.W.2d ___, 2012 WL 386381 (Tex. Crim. App. 2012). The court's ruling, based on application of Texas Rule of Evidence 901 to "circumstantial indicia of authority" (e.g., web page claims "Hector is a snitch" and one Hector Gonzalez was in the courtroom to testify against the defendant) has potential application to virtually any case where admissibility of electronically stored information is an issue.
During the trial of Ronnie Tienda for the murder of David Valadez, whose car came under gunfire from a caravan of "three or four other cars," there was inconsistent testimony as to who fired the first gunshots, whether the defendant was seen merely holding a gun or actually firing a weapon, which car the defendant was riding in, and from which car the fatal shots were fired. The bullet recovered from the deceased's body could not be matched to a particular weapon, as no firearms were ever recovered.
However, during preparation of the case against the defendant, the deceased's sister provided the state with information regarding three MySpace profile pages that she believed Tienda was responsible for registering and maintaining. The state printed out images of each profile page directly from the MySpace.com website, and then marked the profile pages and related content as exhibits for trial. The state used the deceased's sister as the sponsoring witness for these MySpace accounts over the defendant's running objection as to the authenticity of the profile pages. Tienda was found guilty and sentenced to 35 years imprisonment. Tienda appealed.
What It Really Is
At issue in Tienda's appeal was application of Rule 901(a) of the Texas Rules of Evidence, which defines authentication as a "condition precedent" to admissibility of evidence and requires the proponent to make a threshold showing that would be "sufficient to support a finding that the matter in question is what its proponent claims." Upon this prima facie showing, the ultimate question of whether an item of evidence is what its proponent claims, then becomes a question for the jury.
The court noted, citing Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007), that that electronic evidence may be authenticated in a number of different ways consistent with Federal Rule 901 and its various state analogs. But, none of these cases faced the question of whether the profile pages could be effectively self authenticating.
The Tienda opinion is mindful that the provenance of electronic writings can be open to question—computers can be hacked, protected passwords can be compromised, and cell phones can be stolen. The prima facie demonstration required to submit the issue of authentication to the jury is not satisfied, for example, simply because an email on its face purports to come from a certain person's email address, that the respondent in an Internet chat room dialogue purports to identify himself, or that a text message emanates from a cell phone number assigned to the purported author. None of these circumstances, without more, has typically been regarded as sufficient to support a finding of authenticity.
Sufficient Indicia of Authenticity or "Check Out This Picture of Me With My Ankle Monitor!"
With this background, the Tienda court found that the totality of authenticating evidence to be found on the MySpace pages themselves were sufficient to support a finding by a rational jury that the MySpace pages that the state offered into evidence were created by the defendant. This evidence included: (1) numerous photographs of the defendant with his unique arm, body and neck tattoos, as well as his distinctive eyeglasses and earring; (2) a reference to the victim's death and the music from the victim's funeral; (3) references to the defendant's gang; and (4) messages referring to (a) a shooting at "Rumors" with "Nu-Nu," (b) Hector as a "snitch," (c) that a witness by the name of Hector Gonzalez did indeed testify against the defendant at trial, and (d) that the user, having been on a monitor for a year, (coupled with the photograph of the defendant lounging in a chair displaying an ankle monitor) sent from the MySpace pages of "ron Mr. T" or "MR. SMILEY FACE" whose email address is "ronnietiendajr@" –.
The court distinguished its holding from that of Griffin v. State, 19 A.3d 415 (Md. App. 2011), also involving a prosecution for murder, where the state proffered a printout of portions of a MySpace profile purporting to be that of the defendant's girlfriend. Although the girlfriend testified at the trial in Griffin, the state did not attempt to authenticate the MySpace profile as genuinely hers through her testimony. Instead, the lead investigator in the case testified that the MySpace profile identified itself as being that of "Sistasouljah," having the same date of birth as the girlfriend, and also posted on the profile was a photograph of the defendant with his girlfriend. The Maryland Court of Appeals disagreed that the date of birth and the photograph provided sufficient indicia of authentication to justify admission of other postings on the MySpace profile that amounted to veiled threats against the state's principal witness against the defendant observing that "anyone can create a MySpace profile at no cost" and "anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password[.]" Relying for "assistance" in its analysis upon Lorraine, the Maryland Court of Appeals concluded:
The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that [the defendant's girlfriend] was its creator and the author of [the threatening language posted thereon].
Nevertheless, the Texas Court of Appeals in Tienda found there were far more circumstantial indicia of authenticity in this case than were present in Griffin – enough to support a prima facie case that would justify admitting the evidence and submitting the ultimate question of authenticity to the jury.
Texas Rule of Evidence 901 applies to civil cases as well as criminal cases. For example, authenticity of videos offered on two websites was raised as an issue in the recent trademark infringement case of Fancaster, Inc. v. Comcast Corp., _____ F.Supp.2d ____, n. 43, 2011 WL 6426292 (D.N.J. 2011) and Rule 901 was discussed at length in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007), a case involving coverage to a yacht resulting from a lightning strike where the judge found none of the lawyers or parties sufficiently authenticated their electronically stored information. There is also the case of Burchette v. Ambercrombie & Fitch Stores, Inc., 2010 WL1948322 (S.D.N.Y.), an employment discrimination case, where the court rejected the plaintiff's attempt to introduce two photographs of defendant employees that she "found and downloaded from Facebook" for failure to authenticate pursuant to Rule 901. Tienda is, therefore, an opinion that should be read by all trial lawyers, not only those who might represent a criminal defendant with time on his hands, a monitor on his ankle and a computer in his room.