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Contents of MySpace Page Are Sufficient To Establish Its Authenticity

online-social-networking-2-320x200-thumb1-275x183-32283.jpgGenerally in court, documentary evidence such as records, letters, bills, contracts, and similar writings have to be authenticated or identified before being admitted in evidence as genuine.

In today's society, information obtained on social networking websites is being used in court as evidence against the party who made the post.

This seemed to have begged the question, how do you properly authenticate a social networking post? That question has been answered in People vs. Valdez.

In Valdez, supra, a jury convicted Vincent Julian Valdez, Jr., of two counts of attempted murder, four counts of assault with a firearm, and two counts of street terrorism (Pen. Code, § 186.22, subd. (a)), arising from two separate drive-by shootings. Valdez asserts challenges to the sufficiency of the evidence to support his conviction of street terrorism by arguing that the trial court 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."

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.

The appellate court ruled that Valdez's authentication challenge fails because the prosecution met its initial burden to support its claim the MySpace site belonged to Valdez, and that the photographs and other content at the page were not falsified but accurately depicted what they purported to show. Importantly, "the fact that the judge permits [a] writing to be admitted in evidence does not necessarily establish the authenticity of the writing; all that the judge has determined is that there has been a sufficient showing of the authenticity of the writing to permit the trier of fact to find that it is authentic."

In this case, Valdez did not dispute that the MySpace page icon identifying the owner of the page displayed a photograph of Valdez's face. Other indicia the page was his included greetings addressed to him by name ("Hey, Vince") and by relation ("Hey, big brother") in a section of the page where other MySpace users could post comments. In particular, Valdez does not dispute his sister left the "big brother" salutation on his MySpace page, accompanied by a user icon consisting of her photograph and the perhaps facetious label, "Mrs. Kincaid" (she was dating the eventual shooting victim, Jonathan Kincaid, at the time). The greeting from Valdez's sister was one of many posts by friends and by the page owner that included personal details; for example, the post by "Mrs. Kincaid" stated in full: "Hey, big brother, I kinda miss you around the house. Love ya. Bye. Congrats on the job." Additionally, 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. Although 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. Accordingly, the trial court did not err in admitting the page for the jury to determine whether he authored it.

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As I have written before, be careful what you post on-line. You never know when it will be used against you. One of the first things my office does when they get a new family law case is to check to see what social networking sites the opposing party belongs to. You never know what good information you will find to help your case.

At the Law Offices of James V. Sansone, we are committed to making a positive difference in the lives of our clients. We work diligently to provide quality legal representation and a high level of client service to each of our valued clients.

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