MySpace, Authentication, Hearsay and Prejudice

This is another post on a topic I've covered before: the process of authenticating MySpace evidence.

The requirement of “authenticating” evidence to be used in court arises under special rules of evidence or, in some states, under statutes that serve the same purpose. For example, Rule 901(a) of the Federal Rules of Evidence says “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”

The case this post examines is from California, so it involves authentication under California’s rules of evidence. The case is People v. Valdez, __ Cal. Rptr. 3d __, 2011 WL 6275691 (California Court of Appeals 2011), and this is how it arose:

Around 6:30 p.m. on April 27, 2007, rival gang members in a red Honda fired shots at Isaac Villa, a member of the T.I.U. gang (`Toke It Up’ or `Tag It Up’), and Alex Urzua and Ali Hammad Guzman. The three were walking on West Alton Avenue near South Timber Street in Santa Ana. Villa had been involved in violent confrontations with members of the T.L.F. (`Thug Family Life’) gang. . . . Valdez, known by his gang moniker, `Yums,”’ drove the Honda, accompanied by four or five other T.L.F. members. . . .

Valdez made a U-turn, drove back, and stopped in front of Villa's group. Someone yelled from the car, `T.L.F.,’ and the front passenger extended his hand out the driver's side window and fired shots at Villa's group. One hit Urzua in the leg, and the car sped away. Villa and Hammad carried Urzua to Hammad's house and called an ambulance. Two of the shooting victims knew Valdez by his `Yums’ moniker, and one of them noted he recognized Valdez from Valdez's MySpace web page. . . .

[A]round 2:45 a.m. on July 29, 2007, Valdez parked an older model maroon Cadillac in an Anaheim fast food restaurant parking lot. At least one passenger, Robert Quinones, was in the vehicle with Valdez. Jonathan Kincaid, [a] . . . member of the Monte Black Gangster Crips who had dated Valdez's sister, rode by on a bicycle. . . . Kincaid's gang was not a T.L.F. rival, nor was Kincaid riding in territory claimed by T.L.F. A witness . . . [saw] Valdez and Quinones quickly close the doors on their vehicle and speed off after Kincaid. Valdez fired at least one shot at [him], but missed. Kincaid rode . . . to a convenience store and called 911. . . He stated the driver of the car had shot at him, a backseat passenger held a shotgun, and he spotted four occupants in the vehicle, who he claimed were T.L.F. members.

People v. Valdez, supra.

Officers responding to the 911 call interviewed Kincaid and stopped the car Valdez was driving and arrested Valdez and Quinones, its only occupants. People v. Valdez, supra. The arresting officer found “gunpowder on both hands of both men” and the witness who saw them in the fast food restaurant parking lot identified them. People v. Valdez, supra.

Valdez was charged with and convicted of “of two counts of attempted murder, four counts of assault with a firearm, and two counts of street terrorism . . . arising from two separate drive-by shootings.” People v. Valdez, supra. He appealed, raising several issues, one of which was the trial judges admitting an “exhibit consisting of printouts of his MySpace social media internet page.” People v. Valdez, supra.

More precisely, Valdez argued that the trial judge “erroneously admitted pages” from

his MySpace social networking site that included his gang moniker (`Yums’), a photograph of him making a gang hand signal, and written notations including `T.L.F.,’ `YUM $ YUM,’ `T.L.F.'s ′63 Impala,’ `T.L.F., The Most Wanted Krew by the Cops and Ladiez,’ and `Yums. You Don't Wanna F wit[h] this Guy.’ . . . The MySpace page included the following under `Groups’: `CO 2006, Thug Life/Club Bounce. O.C.'s Most Wanted G's. Viva Los Jews. Screaming Thug Life’ and, in an interests section, stated: `Mob[b]ing the streets and hustling, chilling with homies, and spending time with my mom.’ . . . The prosecution's gang expert, Castillo, explained that in gang parlance, the letter `G’ in `O.C.'s Most Wanted G's’ stood for `gangster.’

People v. Valdez, supra.

This is how the prosecution apparently acquired the pages:

An investigator from the district attorney's office, Kevin Ruiz, testified he printed out the web pages in May 2006, a year before the shootings, after accessing them as part of his internet search using the terms `T.L.F. Santa Ana.’ He explained that a person's MySpace pages are accessible publicly without a password, but only the person who has created that MySpace profile, or a person who has a password for the page, may upload content to it or manipulate images on it.

Ruiz explained, `[W]ithout having the password that belongs to the creator of that website, you can only view what's there[.]’ In other words, `to actually add or subtract anything, you would need the . . . password that was given by the person who created the website[.]’ Ruiz admitted he did not know who uploaded the photographs or messages on Valdez's page, who created the page, or how many people had a password to post content on the page.

People v. Valdez, supra.

The trial judge admitted the evidence for “the limited purposes of (1) corroborating a victim's statement to investigators shortly after the first shooting that [he] recognized Valdez from the MySpace site and (2) as foundation for Castillo's expert testimony” that “Valdez was an active T.L.F. gang member.” People v. Valdez, supra. Valdez argued, at trial and on appeal, that the evidence was not authenticated. People v. Valdez, supra.

In addressing his argument, the Court of Appeals noted that while writings “must be authenticated before they are received into evidence . . . , the proponent's burden of producing evidence to show authenticity is met `when sufficient evidence has been produced to sustain a finding that the document is what it purports to be.’” People v. Valdez, supra (quoting Jazayeri v. Mao, 174 Cal.App.4th 301, 94 Cal.Rptr.3d 198 (California Court of Appeals 2009)). It also noted that authentication can be “established by the contents of the writing . . . or by other means”. People v. Valdez, supra.

The Court of Appeals found that the page had been sufficiently authenticated. People v. Valdez, supra. It pointed out, among other things, that (i) Valdez did not “dispute that the MySpace page icon identifying the owner of the page displayed a photograph of” his face; (ii) greetings on the page were “addressed to him by name (`Hey, Vince’)” and “by relation (`Hey, big brother’)"; and (iii) “many posts by friends and by the page owner that included personal details”. People v. Valdez, supra. The court also noted that the

page owner's stated interests, including an interest in gangs generally and in T.L.F. specifically, matched what the police otherwise knew of Valdez's interests from their field contacts with him. This suggested the page belonged to Valdez rather than someone else by the same name, who happened to look just like him.

People v. Valdez, supra.

The Court of Appeals explained that while “Valdez was free to argue otherwise to the jury, a reasonable trier of fact could conclude from the posting of personal photographs, communications, and other details that the MySpace page belonged to him.” People v. Valdez, supra. It found, therefore, that the trial judge “did not err in admitting the page for the jury to determine whether he authored it.” People v. Valdez, supra.

The Court of Appeals also found that the trial judge could have found that “particular items on the page, including a photograph of Valdez forming a gang signal with his right hand,” established the threshold required for the jury to be able to determine their authenticity. People v. Valdez, supra. It explained that the contents of a document can be used to authenticate a writing, and noted Valdez did not dispute that he was the

person depicted in the gang signal photograph. Other `content’ in the photograph, specifically, the deliberately posed position of Valdez's hands, was precise and definite to suggest an intentional rather than inadvertent or accidental hand gesture. Nothing on the rest of the page undermined an initial impression the photograph accurately depicted Valdez making a gang hand sign instead of some other signal or motion.

Rather, the writings on the page and the photograph corroborated each other by showing a pervading interest in gang matters. . . . [T]his consistent, mutually-reinforcing content on the page helped authenticate the photograph and writings. . . .

People v. Valdez, supra. The court also noted that “[o]ther key factors” it relied on in finding that the evidence was authenticated were that the circumstances discussed above “strongly suggested the page was Valdez's personal site” and that it was “ password-protected for posting and deleting content, which tended to suggest Valdez, as the owner of the page, controlled the posted material.” People v. Valdez, supra.

Finally, the Court of Appeals explained that “nothing suggested” Valdez had an enemy “with a motive to implicate Valdez in future gang crimes by creating an entire site or individual postings on it.” People v. Valdez, supra. It noted that Ruiz’s downloading

the page contents long predated any conceivable motive in anyone to hack or fabricate a MySpace page or its content to implicate Valdez in the shooting crimes . . . which occurred a year later. We recognize, of course, that hacking may occur and that documents and other material on the internet may not be what they seem.

But the proponent's threshold authentication burden for admissibility is not to establish validity or negate falsity in a categorical fashion, but rather to make a showing on which the trier of fact reasonably could conclude the proffered writing is authentic. The prosecution met that burden here, as the trial court properly concluded. We therefore reject Valdez's authentication challenge.

People v. Valdez, supra (emphasis in the original).

Valdez also argued that the MySpace evidence was improperly admitted because it was hearsay and/or because it was more prejudicial than probative. People v. Valdez, supra. The Court of Appeals rather quickly disposed of these arguments.

Hearsay, as Wikipedia explains, is essentially second-hand evidence, i.e., is a statement someone made out of court, e.g., in general conversation months before the trial began, that is being offered in evidence to prove “the truth of the matter asserted”. If you’d like to know more about that, check out the Wikipedia entry on hearsay.

As I’ve noted in earlier posts, the rules of evidence bar the use of hearsay at trial -- subject to certain exceptions -- because its accuracy cannot be tested by cross-examination. Hearsay is therefor inadmissible unless it can be shown to be at least reasonably reliable.

The Court of Appeals found that Valdez’s hearsay argument was “without merit because the trial court did not admit the MySpace material for the truth of any assertion on the page.” People v. Valdez, supra. As noted above, the trial judge admitted the MySpace evidence for “the limited purpose” of corroborating the victim’s statement and providing a foundation for Castillo’s testimony. People v. Valdez, supra. The Court of Appeals also noted that Valdez’s hearsay argument failed because the MySpace evidence did not

consist of declarative assertions to be assessed as truthful or untruthful, but rather circumstantial evidence of Valdez's active gang involvement. For example, a reasonable jury would understand its purpose was not to determine whether Valdez and his `Krew’ were truly `Most Wanted’ by the `Ladiez’ in Orange County. Rather, as instructed, the jury was to consider the evidence in deciding what weight, if any, to put in Castillo's opinion testimony.

People v. Valdez, supra.

Finally, Valdez argued that the trial judge admitted the MySpace evidence in violation of California Evidence Code § 352. People v. Valdez, supra. Section 352 states that the trial judge has the discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice” to the defendant. The Court of Appeals disagreed:

Valdez insists admission of mere `gang braggadocio’ from his MySpace page was more prejudicial than probative, but the fact probative evidence reflects negatively on a defendant is not grounds for its exclusion. . . . Valdez suggests . . . more selective admission of the MySpace evidence would have been prudent, such as only a photograph identifying him by his `Yums’ moniker, `without the inflammatory gang-related writing.’ But he made no such suggestion below (People v. Partida, 122 P.3d 765 (California Supreme Court 2005) [trial court does not `err[ ] in failing to conduct an analysis it was not asked to conduct’]) and, as discussed, the gang evidence was relevant and probative. There was no error.

People v. Valdez, supra.