Tag: admissibility

April 8, 2011 Evidence, Litigation

MySpace evidence was inadmissible hearsay

Musgrove v. Helms, 2011 WL 1225672 (Ohio App. 2 Dist. April 1, 2011)

An Ohio domestic relations court ordered an ex-wife to pay her ex-husband child support. Based on evidence that the ex-wife’s income had increased, the court increased the amount of support she had to pay. One of the pieces of evidence the court relied on was information from the ex-wife’s MySpace page where she had stated her income was “less than $30,000.” (This comported with other evidence suggesting her income was around $29,000).

The ex-wife sought review of the order increasing child support with the appellate court. On appeal, the court found the MySpace page to be inadmissible hearsay, and vacated that portion of the order.

The finding turned on a nuance of the rules of evidence pertaining to hearsay. Generally, hearsay is inadmissible as evidence, but there are exceptions. One of the exceptions is statements made by the declarant that are against her interest. The court found that although the MySpace information was used in a way adverse to the ex-wife’s interest (i.e., to increase her support obligation), as a declaration it was not adverse to her interest because it was not an assertion of fact which was by its nature contrary to her interest.

So this case is a reminder that notwithstanding any increased interest in the discoverability of social media evidence, the rules in place may serve to render the information discovered ultimately useless later in the litigation.

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.

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