May 04, 2011

Last year I posted about a Maryland case, Griffin v. State, in which a MySpace comment was used against a defendant: MySpace anti-snitch comment treated as threat. The evidence consisted of a printout of a MySpace page allegedly belonging to the defendant's girlfriend, which read: "Just remember, snitches get stitches!! U know who u are." Last week, the Maryland Court of Appeals reversed that ruling, holding that it was improper to permit the prosecution to use the MySpace comment as evidence in light of how easy it is for other users to manipulate and post information on MySpace. Here's an excerpt from Colin Miller at EvidenceProf Blog about the case:

Griffin is really a terrific opinion whether or not you agree with the court's conclusion. If you want a detailed description of what courts across the country have done so far with regard to the authentication of electronically stored information on social networking sites, you need look no further than the court's opinion.

So, why did the court find that the prosecution failed to authenticate the MySpace page properly? The court agreed with the defendant

'that the trial judge abused his discretion in admitting the MySpace evidence pursuant to Rule 5-901(b)(4), because the picture of Ms. Barber, coupled with her birth date and location, were not sufficient "distinctive characteristics" on a MySpace profile to authenticate its printout, given the prospect that someone other than Ms. Barber could have not only created the site, but also posted the "snitches get stitches" comment. 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 Ms. Barber was its creator and the author of the "snitches get stitches" language.'