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Written By: Tonya D. Hubinger, Esq.

Buchman Provine Brothers Smith LLP

Walnut Creek, California

In a day and age when Social Media is a mainstream form of communication, it was only a matter of time before Social Media pages would headline a Court of Appeal decision. Recently, in a December 2011 California Court of Appeal opinion, the 4th Appellate District decided that Social Media pages may be self-authenticating, and if properly characterized, introduced at trial. (People v. Valdez, 2011 Cal. App. LEXIS 1578 (Cal. App. 4th Dist. Dec. 16, 2011).)

In the case of People v. Valdez, the defendant was on trial for attempted murder and offenses arising from his involvement in a drive-by shooting. In the Valdez case, the court admitted a trial exhibit consisting of printouts of defendant's MySpace page, on which the prosecution's gang expert relied in forming his opinion that defendant was an active gang member. A jury convicted Valdez of two counts of attempted murder, four counts of assault with a firearm, and two counts of street terrorism. The jury also found that Valdez committed the underlying offenses for the benefit of a criminal street gang.

The MySpace page relied upon by the prosecution's gang expert included a picture of defendant identifying Valdez as the owner of the page. The page also included greetings addressed to Valdez. Many of the comments included personal details, all of which suggested that the page belonged to the defendant and not someone else by the same name. The Court of Appeal opined that "a reasonable trier of fact could conclude from the posting of personal photographs, communications, and other details that the MySpace page belonged to [Valdez]." (People v. Valdez, 2011 Cal. App. LEXIS 1578, 10-11.)

Although a proponent must demonstrate that an offered document is authentic, i.e., it is what it purports to be, authenticity may be established by the contents of the writing (Evidence Code §1421) or by other means, and does not require the author's testimony. "As long as the evidence would support a finding of authenticity, the writing is admissible. The fact that conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility." [L]ike any other material fact, the authenticity of a [document] may be established by circumstantial evidence. (People v. Valdez, 2011 Cal. App. LEXIS 1578, 9.)

The defendant contended that the MySpace pages lacked authenticity and "anyone can put anything on the internet," relying upon People v. Beckley (2010) 185 Cal.App.4th 509 for this proposition and a conclusion that the information was inadmissible. However, the 4th District distinguished this case from Beckley stating, "[h]ere, in contrast, evidence of the password requirement for posting and deleting content distinguishes Beckley, as does the pervasive consistency of the content of the page, filled with personal photographs, communications, and other details tending together to identify and show owner-management of a page devoted to gang-related interests." (People v. Valdez, 2011 Cal. App. LEXIS 1578, 13.)

The Appellate Court disagreed and held that the MySpace page was self-authenticating and could be utilized for a limited purpose at trial. Specifically, the MySpace page was admitted for the specified purpose of (1) corroborating a victim's statement to investigators shortly after the first shooting that the victim recognized Valdez from the MySpace site and (2) as a foundation for the prosecutor's gang expert. (People v. Valdez, 2011 Cal. App. LEXIS 1578, 7-8.)

The court also found that the "hearsay objection fails because the nature of the evidence here did not consist of declarative assertions to be assessed as truthful or untruthful, but rather circumstantial evidence of Valdez's active gang involvement." (People v. Valdez, 2011 Cal. App. LEXIS 1578, 15.)

People v. Valdez opens the door for litigators to use Social Media sites as evidence at trial. Although information on Social Media sites must still be acquired through proper sources, once properly obtained, Social Media sites will prove to be invaluable tools at trial.

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