Evidence – Page 2 – 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.

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.

January 28, 2008 Computer Crime, Evidence

Social networking evidence presents challenge in prosectuion over alleged threats made after Virgina Tech shootings

U.S. v. Voneida, 2008 WL 189667 (M.D. Pa. January 18, 2008)

Professor Goldman kindly emailed me a copy of the U.S. District Court for the Middle District of Pennsylvania’s decision in the case of U.S. v. Voneida. This criminal prosecution arose out of some postings that defendant Voneida is alleged to have made on his MySpace page about last April’s Virginia Tech shootings.

The court approached the case with all the awe for the Internet suitable for 1994:

[Voneida’s statements] did not occur in a moment, like words being spoken; nor were they sent from one place to another once and only once, like mailing a letter, broadcasting a message over television or radio, or even sending an email. Rather, Defendant’s comments were communicated, and had the potential to reach an audience, for at least nine days. This is one of the ways in which speech on the internet, and on social networking sites in particular, challenges existing methods of legal analysis.

In this case, the feds claimed that Voneida’s postings ran afoul of 18 U.S.C. 875(c), which prohibits the transmitting in interstate commerce of “any threat to injure the person of another.” Voneida filed a motion in limine requesting that several pieces of evidence be excluded at trial.

One of the pieces of evidence that Voneida wanted kept out was an email message that a student in Pennsylvania sent to university authorities to report the postings. The court denied Voneida’s request on this point.

The court held that in determining whether Voneida’s statements were “true threats,” it would be instructive for the jury to consider the effect of the statements on their audience. Addressing this point, the court observed the following about an online “audience”:

Even if [the student who reported the postings] was an unintended viewer, the context of the internet and social networking sites like Myspace.com may make her part of Defendant’s audience regardless of his intent to reach her as opposed to others. As a part of his audience, her response to his comments is relevant and properly considered when evaluating whether they are “true threats.”

A few more facts would be interesting. What if a social network participant adjusts his profile settings to allow only “friends” see the content? Would the so-called “audience” still be the world at large? To what extent can a publisher technologically constrain his or her audience?