Attorney Evan Brown

November 4, 2009 Evidence, Litigation

Robbery conviction overturned because prosecutor played YouTube video during closing argument

Miller v. State, 2009 WL 3517627 (Ind. App. October 30, 2009)

Appellant Miller and his dad robbed Wedge’s Liquor Store in Logansport, Indiana back in November 2007. During the robbery Miller pulled out a shotgun and pointed it at the clerk’s face.

Get your grubby paws off my YouTube image

During closing argument at trial, the prosecutor showed the jury a video from YouTube to illustrate “how easy it was to conceal a weapon inside clothing.” The video was not admitted as evidence but was used merely as a demonstrative aid. The jury convicted Miller and the court sentenced him to 18 years in prison.

Miller appealed his conviction, arguing that the trial court made a mistake in letting the jury see the YouTube video. The court agreed with Miller and reversed.

The court noted that experiments and demonstrations may be permitted during trial if they will aid the court and jury. But in this case the court of appeals found that the YouTube video showing how weapons could be concealed could not possibly provide such aid. The state conceded in its appeallate brief that Miller’s defense theory was mistaken identity. So “the whole issue about the ability to hide weapons under clothing was ultimately unimportant.”

Moreover, before showing the video to the jury, the prosecutor said that the video “[had] nothing to do with this case.” The court of appeals agreed with Miller’s argument that the video “[brought] alive the passions of the jury . . . and suggested Miller was not only the robber but that he also . . . intended to . . . cause injury or death.” The video “was irrelevant, prejudical, and confused issues. . . .”

YouTube evidence picture courtesy Flickr user PIAZZA del POPOLO under this Creative Commons license.

November 3, 2009 Miscellaneous

In New Hampshire, your landlord has to give you free* cable

Lally v. Flieder, 986 A.2d 652 (N.H. 2009)

Hey, let’s watch HGTV and get some ideas for the apartment! It’s not like we have to pay for it or anything.

Anyone who has ever been a landlord will think the New Hampshire Supreme Court may have lost its mind. Those who like TV and broadband access a lot may think otherwise.

Awesome apartment with guitars that kick even more ass, yo.

Here’s the story.

A tenant told his landlord that he wasn’t going to pay rent anymore. So the landlord sued for unpaid rent and to get possession of the apartment back. Six days later the landlord disconnected the cable service. Turns out that was a no-no.

The nonpaying tenant countersued the landlord under a New Hampshire law that provides:

No landlord shall willfully cause, directly or indirectly, the interruption or termination of any utility service being supplied to the tenant including, but not limited to water, heat, light, electricity, gas, telephone, sewerage, elevator or refrigeration, whether or not the utility service is under the control of the landlord, except for such temporary interruption as may be necessary while actual repairs are in process or during temporary emergencies.

The trial court ruled in favor of the landlord, finding that cable service was not a protected utility and therefore by disconnecting the service, the landlord had not engaged in unlawful self help.

The tenant sought review with the New Hampshire Supreme Court. On appeal, the court reversed, finding cable service critical to the notion of “habitability.”

The court looked to the language of the statute and found cable service to be like the utilities specifically mentioned. The court observed that the specified utilities “all pertain to the habitability of a dwelling or a person’s well being.”

Right. In the middle of a brutal New Hampshire blizzard, nothing will keep you warm like a hearty dose of the Kardashians. And who doesn’t think the right to surf for porn is every bit as essential to a happy life as not having raw sewage backing up in your kitchen sink.

Apparently the members of the court really like watching TV and surfing the web using a broadband connection:

Modern cable television also pertains to the habitability of a dwelling and a person’s wellbeing. Indeed, many people access essential telephone service, the Internet, news information and entertainment by way of cable. Thus, the unlawful termination of a tenant’s cable television service would be a means of accomplishing a self-help eviction-the very evil the legislature meant to deter.

For these reasons, the court found that the landlord broke the law when it discontinued the nonpaying tenant’s cable service.

*Until the court kicks your ass to the curb.

Apartment photo courtesy Flickr user Jordan Roher under this Creative Commons license.

November 2, 2009 Miscellaneous

Relationship status and the law: it’s complicated

Online statements by mother were critical evidence in paternity case

Watermeier v. Moss, 2009 WL 3486426 (Tenn. Ct. App. October 29, 2009)

Under Tennessee law a man can petition the court to determine that he is the father of a child born to a woman who is married to someone else. (Better make sure there is good security in the courthouse parking lot!)

The court will consider a petition filed more than 12 months after the child’s birth untimely if : (1) the mother was married and living with her husband at the time of conception, (2) the mother and her husband “remained together” through the time the petition was filed, and (3) both the mother and her husband file a sworn statement saying the husband is the father.

Petitioner Watermeier asked the court to determine that he was the father of a child born to Appellee, a woman married to someone else. The woman and her husband opposed the petition. The parties did not dispute that she lived with her husband when the baby was conceived. The woman and her husband also both filed purportedly sworn statements that they were the parents of the child. The troublesome issue was whether the husband and wife had “remained together” through the time the petition was filed.

There was no dispute the two had separate residences. But they were not divorced and they testified they had no intention of getting divorced. In any event, the court found that the two had not “remained together” as provided under Tennessee law.

Among the important pieces of evidence the court relied upon in determining whether the two “remained together” were postings that the mother had made to an online dating service. On different occasions she had listed herself as “separated” and “divorced.” The court took these statements to “demonstrate that this is not an intact marriage and the parties have not ‘remained together.'”

So saying that “it’s complicated” might be an understatement, don’t you think?

Photo courtesy Flickr user debaird under this Creative Commons license.

October 26, 2009 Contracts, Litigation

Court upholds eBay forum selection clause

Tricome v. Ebay, Inc., 2009 WL 3365873 (E.D. Pa. October 19, 2009)

Everyone who signs up to use eBay has to assent to the terms of eBay’s User Agreement. Among other things, the User Agreement contains a forum selection clause that states all disputes between the user and eBay must be brought to court in Santa Clara County, California.

After eBay terminated plaintiff Tricome’s account, Tricome sued eBay in federal court in Pennsylvania. eBay moved to dismiss or to at least transfer the case, arguing that the forum selection clause required it. The court agreed and transferred the case to the U.S. District Court for the Northern District of California.

Plaintiff had argued that the court should not enforce the forum selection clause because it was procedurally and perhaps substantively unconscionable. The court found the agreement not to be procedurally unconscionable because Plaintiff did not have to enter into the agreement in the first place — he only did it to increase his online business. Furthermore, eBay did not employ any high pressure tactics to get Plaintiff to accept the User Agreement. Moreover, eBay had a legitimate interest in not being forced to litigate disputes all around the country.

The court likewise found the User Agreement was not substantively unconscionable either. It would not “shock the conscience” for a person to hear that eBay — an international company — would undertake efforts to focus litigation it is involved with into a single jurisdiction. Furthermore, having the forum selection clause would conserve judicial and litigant resources, in that parties and the courts would know in advance where the appropriate place for disputes concerning eBay would be heard. Finally (and rehashing an earlier point regarding procedural unconscionability), Plaintiff had a meaningful choice — he could have decided not to do business on eBay in the first place.

Map photo courtesy Flickr user sidewalk flying under this Creative Commons license.

October 16, 2009 Evidence

Web photos inadmissible as evidence in case against deer hunter

State v. Ness, — N.W.2d —-, 2009 WL 3296676 (N.D. Oct. 15, 2009)

Another day, another state supreme court decision about whether web-found evidence is admissible. Yesterday our discussion was about a MySpace posting in a murder trial. (The evidence in that case was admissible.) Today it’s about pictures from the Internet in a case against a hunter accused of failing to tag the deer he had shot. (The evidence in this case was inadmissible.)

Defendant Ness was charged with violating a proclamation of the governor of North Dakota (which has the force of law) requiring hunters to “immediately” place a state-issued tag on all deer killed. At trial, his attorney cross examined the game warden who issued the citation to Ness while Ness was cutting the deer up in his front yard. In connection with this cross examination, Ness’s lawyer tried to introduce photos from the web of other hunters, to shed light on what the word “immediately” meant.

The trial court excluded the photos of other hunters. Ness was found guilty and sought review with the North Dakota Supreme Court. On appeal, the court agreed that the photos were properly excluded.

Ness argued that keeping the photos away from the jury during the game warden’s cross examination violated his constitutional right to confront his accuser. The Supreme Court rejected that argument, however, finding that the pictures of other hunters with other animals at other times were irrelevant to the present matter and would not help the jury determine whether the law was broken in this case.

Deer photo courtesy Flickr user law_keven under this Creative Commons license.

October 15, 2009 Evidence

MySpace posting was not improper character evidence at murder trial

Clark v. State, No. 43S00-0810-CR-575 (Ind. October 15, 2009). [Download the opinion]

Defendant Clark killed his girlfriend’s two-year-old daughter. At his murder trial, the prosecution introduced the following post Clark had made to his MySpace page:

Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I’m glad to say I have helped you people in my past who have done something and achieved on the other hand, I’m sad to see so many people who have nowhere. to those people I say, if I can do it and get away. Bullshit. And with all my obstacles, why the fuck can’t you.

Clark was convicted of murder and sentenced to life in prison. He sought review with the Indiana Supreme Court. On appeal, the court affirmed the conviction.

One of the arguments Clark raised on appeal was that the trial court committed error when it allowed the jury to consider the MySpace posting. He claimed that it was improper character evidence under Indiana Rule of Evidence 404(b) which provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The Supreme Court held that Rule 404(b) did not apply because “[i]t was Clark’s words and not his deeds that were at issue.” The posting was “solely evidence of [Clark’s] own statements, not of prior criminal acts.”

Moreover, Clark had made an issue of his character when he testified in his own defense. One theme of his testimony was that he had acted recklessly, and that had he intended to kill the victim he would have done more to conceal the crime. The court held that the bravado exhibited in the MySpace posting (in conjunction with a statement Clark had made to a detective upon his arrest, namely, “I will fucking kick your ass. I will send the Hell’s Angels to kill you. Fuck it. It’s only a C felony. I can beat this.”) was probative in that it countered his argument of “mere” recklessness.

October 11, 2009 Contracts

Web host did not breach contract by terminating rude customer

Mehmet v. Add2net, Inc., — N.Y.S.2d —-, 2009 WL 3199876 (N.Y.A.D. 1 Dept. October 8, 2009)

Plaintiff website operator didn’t pay his monthly hosting fees on time. He called the hosting company and said he’d be sending a check, but in the meantime the web host exercised its right under the hosting agreement to suspend Plaintiff’s account for nonpayment. Plaintiff called and left a nasty voicemail, using an obscene word to threaten to sue the hosting company if his website was not reactivated.

In response to this angry voice mail, the web host terminated Plaintiff’s account. He sued for breach of contract. The web host moved to dismiss at the trial court level and the court granted the motion. Plaintiff sought review. On appeal, the court affirmed the dismissal.

Of particular importance was a provision in the hosting agreement that incorporated by reference an Acceptable Use Policy (AUP), and provided that any breach of that policy would be grounds for suspension or termination of plaintiff’s account. Under the AUP, plaintiff agreed “not to abuse whether verbally or physically or whether in person, via email or telephone or otherwise … any employee or contractor of [defendant].”

The nonpayment coupled with this violation of the web hosting acceptable use policy undercut Plaintiff’s breach of contract claim.

October 7, 2009 Privacy, Uncategorized

Group sex photos case heads to trial

Peterson v. Moldofsky, No. 07-2603, 2009 WL 3126229 (D.Kan. September 29, 2009)

Defendant took pictures of his ex-girlfriend “engaged in various sex acts with two other people.” Later he emailed some of the photos to his ex-girlfriend’s mother, ex-husband, ex-in laws, boss and co-workers.

The ex-girlfriend sued for intentional infliction of emotional distress and invasion of privacy. Defendant moved for summary judgment. The court denied the motion in large part.

Infliction of emotional distress

Defendant argued that the court should toss the intentional infliction of emotional distress claim because Plaintiff ex-girlfriend failed to show that Defendant’s conduct was sufficiently extreme and outrageous, and that the alleged distress exceeded what a reasonable person would experience in the circumstances.

The court rejected Defendant’s arguments. It found that an average citizen would think emailing photos of a person engaged in a manage a trois to one of the participants’ mother, among others, was outrageous. Moreover, Plaintiff’s distress was shown to be severe, as she had to get counseling. It sounds as if the court would have found it severe enough even without the counseling — Defendant’s conduct was “so shocking and outrageous as to give rise to an inference of severe emotional distress.”

Invasion of privacy

Plaintiff claimed two forms of invasion of privacy — intrusion upon seclusion and publication of private facts. The court held she had presented enough facts for the latter but not the former.

The court granted Defendant’s motion for summary judgment as to intrusion upon seclusion because no intrusion occurred. Plaintiff knew Defendant was there taking pictures of the activities. The court rejected Plaintiff’s argument that publication of the no doubt intimate photos constituted intrusion. It held that the disclosure of properly obtained information could not give rise to the claim.

But as to the argument that emailing the photos unlawfully publicized private facts, the court sided with Plaintiff. Defendant had argued that emailing the photos to only a half dozen or so people did not amount to “publication,” which is one of the elements of the tort. He pointed to Comment “a” of the Restatement (Second) of Torts §652D which says that “it is not an invasion of the right of privacy to communicate a fact . . . to a single person, or even to a small group of people.”

In rejecting this argument, the court engaged in what some might characterize as “Internet exceptionalism,” — applying the law in response to a perceived substantial difference between online and offline communication. The court observed that “the Internet enables its users to ‘quickly and inexpensively’ surmount the barriers to generating publicity that were inherent in the traditional forms of communication.” Finding this distinction to be significant, the court held that distribution of the photos even to a small group of people through the private means of electronic mail could be considered a “publication” for purposes of the tort of invasion of privacy.

Threesome photo courtesy Flickr user curgoth under this Creative Commons license.

September 21, 2009 Computer Crime, Evidence

MySpace drinkin’ photos causing real life problems again

Last time it was probation being revoked. This time it’s children being taken away. A recent Texas case shows how irresponsible social media use can have some unpleasant consequences.

Mann v. Department of Family and Protective Services, 2009 WL 2961396 (Tex. App. September 17, 2009)

Appellant had her baby taken away by state protective services. She sought review with the court claiming, among other things, that the state had presented “no evidence that [Appellant] engaged in endangering conduct.”

Woo hoo

The court found otherwise, agreeing with the lower court that Appellant had endangered the child. Among the evidence it considered were photos from Appellant’s MySpace account with the following captions, unedited to preserve their original ebullience:

At Ashley House Dranking it Up
Me Helping Ashley Stand Up, Were Both Drunk
Me Dancing my ass off, I can dance when I drunk
Yall see how much we Dranked plus the one’s that droped on the floor
We were all fucked up

Oh, by the way, Appellant was under 21.

The court held that “[t]his evidence could lead a reasonable factfinder to firmly believe that appellant engaged in underage drinking on these two occasions, despite knowing that she was under the legal drinking age.”

Photo courtesy Flickr user Mercury98 under this Creative Commons license.

Do Twitter’s new terms of service forsake third party developers?

Twitter announced its new Terms of Service yesterday. One big issue deals with copyright ownership. This is one of the perennial questions in the law of social media: “who owns the user-created content?” Twitter nods to this issue when it states that “Twitter is allowed to ‘use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute’ your tweets because that’s what we do. However, they are your tweets and they belong to you.”

That’s all well and good. And by not being too grabby, Twitter avoids stirring up a brouhaha like Facebook did earlier this year for a little while when it claimed a very broad license in users’ content. In that situation, some pointed out that Facebook could use your content forever, even after you deleted your account. No doubt Twitter was motivated by an aversion to controversy of this sort when it decided to not claim a perpetual license.

But is Twitter being too cautious? The license it claims in the new terms of service does not specify a duration. That’s user-friendly, because such a license is probably terminable at will by the user. Under cases like Walthal v. Rusk, 172 F.3d 481 (7th Cir. 1999), Twitter would no longer have the authority to use, copy, reproduce, etc. the tweets of a user that no longer permitted such use be made. Deleting one’s account would be a good indication that such a license was being revoked. And the user could follow up with an express statement to Twitter that the license no longer exists.

Still all well and good. But let’s look at the “ecosystem” that has been nourished by the Twitter API, and which Twitter bolsters in its new terms of service. (“We encourage and permit broad re-use of Content. The Twitter API exists to enable this.”)

Third party developers can build apps that, among other things, cache users’ Tweets and make them available for mashup, organization, etc. and redisplay. These acts by the third party developer are an exercise of rights of the copyright holder, i.e., the individual Twitter user. The terms of service allow Twitter to sublicense these rights to the third party developer, so there is no problem so long as the individual Twitter user is under the terms of service.

What happens, though, in the situation we were just discussing where the individual user revokes the license to Twitter? These cached copies out there in the possession of third party developers all of a sudden become unauthorized, because Twitter no longer has the sublicensable right to allow the tweets’ copying and redistribution by others.

In such a situation, are third party developers who continue to display the content left blowing in the wind, as infringers of erstwhile Twitter users’ copyright rights?

Notice sign photo courtesy Flickr user szlea under this Creative Commons license.