Case Law Summaries

Juvenile and Young Adult

Juvenile and Young Adult

 

Roper v. Simmons, 543 U.S. 551, (U.S. 2005)

The respondent was convicted of a murder he committed in Missouri at the age of seventeen. He was sentenced to death upon turning eighteen. The Supreme Court overturned his sentence, holding that the Eighth Amendment forbids the imposition of the death penalty on juvenile offenders under 18. In the decision, Justice Kennedy cited three reasons why juveniles should not receive the death penalty: lack of maturity (noting juveniles cannot vote); vulnerability and susceptibility to “negative influences and outside sources” including peer pressure; and finally, “the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.” Id., 543 U.S. 551, 570, (U.S. 2005)

 

Graham v. Florida, 560 U.S. 48 (U.S. 2010)

When defendant was a juvenile he was charged as an adult and plead guilty to armed burglary with assault and attempted robbery. He was subsequently adjudicated guilty after violating conditions of probation, and received the maximum sentence of life imprisonment without parole. The Supreme Court reversed the defendant’s sentence, referring to a life sentence without parole as “the second most severe penalty permitted by law”, Id. at 69, noting that such practice of sentencing juveniles to life sentences without parole was exceedingly rare,  a national community consensus developed against it, and none of the recognized goals of penal sanctions, i.e., retribution, deterrence, incapacitation, and rehabilitation, provided an adequate justification for the sentence.  Id. at 71.  Finally, the Court reasoned that at the time of sentencing, lower courts could not determine whether juveniles would be a danger to society for the rest of their lives, and a sentence of life without parole improperly denied the juveniles the chance to demonstrate growth, maturity, and rehabilitation. Id. at 72.

J.D.B. v. North Carolina, 564 U.S. 261 (U.S. June 16, 2011)

The thirteen year old was charged with breaking and entering and larceny. A uniformed police officer removed the seventh-grade special education student from his classroom and conducted a 30 minute interview of the student with other police about home break-ins in a closed-door conference room. Prior to questioning, the student was not given Miranda warnings. The student confessed. The State court denied the student’s motion to suppress, reasoning that the statement was not given in custody, and declined to extend the test for custody to include consideration of the age of an individual subjected to questioning by police. The Supreme Court determined that remand was warranted because:  a child's age properly informed the Miranda custody analysis since (1) a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go, and courts can account for that reality without doing any damage to the objective nature of the custody analysis, and (2) a child's age differed from other personal characteristics that, even when known to police, have no objectively discernible relationship to a reasonable person's understanding of his freedom of action. This case set precedent for lower courts to consider the ages of the juveniles in deciding whether or not they are held in custody when subjected to interrogation.

Miller v. Alabama 567 U.S. ___ (2012); 132 S. Ct. 2455

 In 2012, the Supreme Court extended Graham v. Florida and held that the Eight Amendment also prohibited life sentences without parole for juveniles convicted of homicide. Here, two fourteen year old juveniles murdered a store clerk during a robbery. In its decision, the Supreme Court noted, “[o]ur decisions rested not only on common sense--on what “any parent knows”—but on science and social science as well…. developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds—for example, in parts of the brain involved in behavior control.  Findings of transient rashness, proclivity for risk, and inability to assess consequences both lessened a child's ‘moral culpability’ and enhanced the prospect that, as the years go by and neurological development occurs, his deficiencies will be reformed.” Id. At 2464- 2465.

Guns, Gangs, and Violent Crime

Guns, Gangs, and Violent Crime

 

People v. Sanchez, 63 Cal. 4th 665, 666, 374 P.3d 320, 324, 204 Cal. Rptr. 3d 102, 106, 2016 Cal. LEXIS 4577, *1 (Cal. 2016)

The California Supreme Court reversed the jury’s determination that the defendant belonged in a gang (an enhancement) but otherwise affirmed the other convictions of felon in possession of a handgun and possession of drugs with a loaded firearm. The court reversed the findings of gang activity because the State’s expert testified to this enhancement through hearsay; specifically, testifying about defendant's five prior police contacts, which the expert learned about through police reports and presented as true statements of fact without independent proof. The Court held that these statements were testimonial because the reports were compiled during police investigation of the completed crimes.

Caetano v. Massachusetts, 136 S. Ct. 1027, (U.S. 2016)

The Supreme Court held that the “Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Id. In this case, the Supreme Court reversed a conviction of a woman who used a stun gun to defend herself against her ex-boyfriend, who had a history of domestic violence.

 

Johnson v. U.S, 576 U. S. ____ (2015)

Under the Armed Career Criminal Act (ACCA) of 1984, defendants convicted of being a felon in possession of a firearm face enhanced sentences if they have three or more previous convictions for a “violent felony.”  Under this sentencing structure, defendants face a mandatory minimum sentence of fifteen years. ACCA defines a “violent felony” as one that “involves conduct that presents a serious potential risk of physical injury to another.” Here, Defendant pled guilty to being a felon in possession of a handgun. The government moved to increase his sentence due to two previous “violent felony” convictions, one of which was the possession of a shotgun. The Supreme Court held that imposing an increased sentence under the Armed Career Criminal Act was “unconstitutionally vague” and in violation of due process and the fifth amendment.

 

After the Johnson decision, the Supreme Court held that since Johnson made a “substantive rule change,” it could be applied retroactively.  Welch v. U.S, 578 U.S. ___ (2016).

 

Voisine v. U.S.,  579 U.S. ___ (2016), 132 S. Ct. 2272

The Supreme Court held that reckless (compared to the ‘knowing’ or ‘intentional’ mens rea) misdemeanor domestic violence convictions trigger prohibitions on gun ownership. Here Voisine pled guilty to a misdemeanor violence offense against his ex-girlfriend. The Maine Criminal code defined the offense as intentionally, knowingly or recklessly cause[ ] bodily injury or offensive physical contact to another person. Id at 2277. Defendant was later convicted of killing an eagle with a rifle. He joined another petitioner to claim that their previous convictions could have been “reckless” instead of intentional or knowingly. The Court rejected the defendant’s argument and stated that “Congress’s definition of a ‘misdemeanor crime of violence’ contains no exclusion for convictions based on reckless behavior. A person who assaults another recklessly ‘use[s]’ force, no less than one who carries out that same action knowingly or intentionally. The relevant text thus supports prohibiting petitioners, and others with similar criminal records, from possessing firearms.” Id. At 2280.

People v. Sanchez, 63 Cal. 4th 665, 666, 374 P.3d 320, 324, 204 Cal. Rptr. 3d 102, 106, 2016 Cal. LEXIS 4577, *1 (Cal. 2016)

The California Supreme Court reversed the jury’s determination that the defendant belonged in a gang (an enhancement) but otherwise affirmed the other convictions of felon in possession of a handgun and possession of drugs with a loaded firearm. The court reversed the findings of gang activity because the State’s expert testified to this enhancement through hearsay; specifically, testifying about defendant's five prior police contacts, which the expert learned about through police reports and presented as true statements of fact without independent proof. The Court held that these statements were testimonial because the reports were compiled during police investigation of the completed crimes.

People v. Rodriguez, 290 P.3d 1143, (Cal. Dec. 27, 2012)

Defendant, a member of the Norteno gang, approached a man, demanded his money, and punched him. Two gang experts testified that robbery was a primary activity of defendant's gang and opined that the attempted robbery was committed for the benefit of the gang. However, the prosecution presented no evidence that defendant acted with anyone else; in fact, he was acting alone during the robbery. The jury convicted defendant of attempted robbery and of the separate felony of gang participation. The court held that defendant's commission of the attempted robbery while acting alone did not fall within the elements of the gang participation offense, which required willfully promoting, furthering, or assisting in felonious criminal conduct by members of the gang. "Members" was a plural noun. Interpreting that word to include the singular under the relevant California statute would not be reasonable in the context of the due process concerns raised by a gang participation statute that did not require the underlying felony to be gang-related. Accordingly, the felonious criminal conduct had to be committed by at least two gang members, one of whom could be the defendant, if a gang member. This requirement was not met because no gang members other than defendant participated in the attempted robbery.

Victims Rights

 

Paroline v. U.S, 134 S. Ct 1710 (2014)

Defendant plead guilty to possession of child pornography, and the district court denied restitution to a victim because the government failed to show what losses were proximately caused by defendant. The U.S. Court of Appeals for the Fifth Circuit concluded that defendant was liable for the victim's entire losses from the trade in her images. The Supreme Court held restitution to child pornography victims may be proper when defendants’ offenses cause proximate losses to the victims depicted in the pornography.

County of Los Angeles v. Mendez et al. Slip. Op #16-369 (U.S. May 30, 2017)

Opinion available at: https://www.supremecourt.gov/opinions/16pdf/16-369_09m1.pdf. The Los Angeles County Sheriff’s Department received word from a confidential informant that a potentially armed and dangerous fugitive parolee was located at a certain residence. When two officers were dispatched to the residence, they opened the door to the windowless shack--without a search warrant and without announcing their presence. Mendez (not the parolee) arose from the bed, holding a BB gun. The officers’ bullets struck both Mendez and his pregnant girlfriend, but none of the injuries were life-threatening. The District court awarded the couple nominal damages for 1) a warrantless entry claim and 2) a knock and announce claim. For the third claim, excessive force, the court found that the deputies’ use of force was reasonable, but held them liable nonetheless under the Ninth Circuit’s provocation rule, which makes an officer’s otherwise reasonable use of force unreasonable if (1) the officer “intentionally or recklessly provokes a violent confrontation” and (2) “the provocation is an independent Fourth Amendment violation,” see Billington v. Smith, 292 F. 3d 1177, 1189. On appeal, the Ninth Circuit held that the officers were entitled to qualified immunity on the knock-and-announce claim and that the warrantless entry violated clearly established law. However, the Supreme Court, noting that “By conflating excessive force claims with other Fourth Amendment claims, the provocation rule permits excessive force claims that cannot succeed on their own terms.” Accordingly, the Supreme Court held that the Fourth Amendment provides no basis for the U.S. Court of Appeals and the 9th Circuit's "provocation rule," which makes an officer's otherwise reasonable use of force unreasonable if (1) the officer "intentionally or recklessly provokes a violent confrontation" and (2) "the provocation is an independent Fourth Amendment violation."

Human Trafficking

Human Trafficking

 

Backpage.com, LLC v. Lynch, 2016 U.S. Dist. LEXIS 146685, *1-2 (D.D.C. Oct. 24, 2016)

The Supreme Court declined to block subpoenas issued to Backpage.com by a Senate committee that is investigating the company’s alleged role in facilitating child sex trafficking. The plaintiff, Backpage.com, brought this action against DOJ challenging the constitutionality of the Stop Advertising Victims of Exploitation Act of 2015 ("SAVE Act"), which amended 18 U.S.C. § 1591 (2000), "a statute that prohibits certain conduct related to sex trafficking of children and those subjected to force, fraud, or coercion," and added "advertising to the types of conduct prohibited under § 1591(a).” Backpage challenged the constitutionality of the SAVE Act. Backpage said it feared prosecution if it did not remove the "adult" category from its website, which the company thought violated its First Amendment rights. The Court granted the government's motion to dismiss this action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). The judge stated on page 15 of the decision, “Backpage.com has not presented evidence that Congress sought to eliminate all advertisements of a sexual nature from its website through the adoption of the SAVE Act; rather, the legislation is directed only at those advertisements concerning illegal sex trafficking, which do not constitute constitutionally protected speech.” The link to the Memorandum Opinion: http://cases.justia.com/federal/district-courts/district-of-columbia/dcdce/1:2015cv02155/175744/16/0.pdf?ts=1477387252

U.S. v. Kanubhai Patel Criminal Action No. 13-286 (January 7, 2016)

Patel, aware of human trafficking occurring on his hotel property, rented rooms to pimps and prostitutes at a higher rate than other guests. He would allow women to bring back multiple guests, witnessed pimps severely beat the women, and charged extra for damage to the hotel rooms, agreeing not to contact the police after pimps violently beat the women. Defendant also allowed the pimps to rent rooms under the women’s identification cards, and would not tell the police as long as the pimps paid the rent. Patel was the first defendant in the U.S. convicted of a human trafficking offense based solely on the “benefiters” theory of criminal liability. He pled guilty to the federal charge of Benefitting Financially from Trafficking in Persons.

Bail and Pretrial Release (non-Supreme Court cases)

Bail and Pretrial Release (non-Supreme Court cases)

 

Haughton v. Crawford, 2016 U.S. Dist. LEXIS 140104 (October 7, 2016).
Summary: Petitioner had been held by the Department of Homeland Security in an immigration detention facility since October 5, 2015.  Due to a series of burglary convictions earned while he was a teenager, Petitioner is subject to mandatory detention pursuant to 8 U.S.C. § 1226(c) while he awaits disposition of his removal proceedings. Id. In June 2016, Haughton petitioned this Court for a writ of habeas corpus, arguing that his prolonged detention violates the constitutional guarantee of due process and requesting an individualized bond hearing.  As of this writing, he has been detained for over one year. The federal court held that the petitioner, detained over one year for crimes committed as a juvenile, must be subject to an individualized bond hearing within 30 days.

 

In re Order Revising the Comment to Rule 523 of the Pa. Rules of Crim. Procedure, 2016 Pa. LEXIS 1230 (June 15, 2016)

Upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revision of the Comment to Rule of Criminal Procedure 523 (Release Criteria) to recognize the use of risk assessment tools as one factor permitted to be considered in bail determination…. “Nothing in this rule prohibits the use of a pretrial risk assessment tool as one of the means of evaluating the factors to be considered under paragraph (A)”. However, the Court held that a risk assessment tool must not be the only means of reaching the bail determination.

 

State v. Loomis, 2016 WI 68, 371 Wis. 2d 235, 881 N.W.2d 749, 2016 Wisc. LEXIS 178 (Wis. 2016)

Defendant's post-conviction motion requesting a resentencing hearing was properly denied because the use of the Correctional Offender Management Profiling for Alternative Sanctions risk assessment (COMPAS) at sentencing did not violate his right to due process.

U.S. v. Salerno, 481 U.S.739, (U.S. May 26, 1987)

Defendants were charged with criminal offenses based on their involvement in a criminal enterprise, and held without bail pending trial. The prosecution showed one was a boss and the other was a captain in their crime enterprise. Furthermore, both defendants had participated in conspiracies to aid their illegitimate enterprises through violent means; and one defendant had personally participated in two murder conspiracies. The District Court granted the government's motion for pretrial detention under the Bail Reform Act of 1984 on the grounds of dangerousness, noting the evidence of the two defendants' present danger to the community was overwhelming. The arrestees appealed, arguing that their pretrial detention under the Bail Reform Act of 1984 was unconstitutional. The appellate court agreed, stating the Bail Reform Act was facially unconstitutional. The government appealed from the decision. The Supreme Court reversed, holding that the Bail Reform Act was constitutional on its face because it was based on the compelling interest of concern for the safety of people. It did not violate the 5th or 8th amendment. The Court also noted that the fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances was insufficient to render it wholly invalid. The arrestees failed to shoulder their heavy burden to demonstrate that the BRA was "facially" unconstitutional. Thus, the Court held that it was not unconstitutional for a federal court to detain an arrestee pending trial if the government demonstrated by clear and convincing evidence that no release conditions would reasonably assure the safety of any other person and the community.

Jennings v. Rodriquez, 583 U.S. ___ (2018)

The Immigration and Nationality Act of 1965 requires detainment for immigrants (noncitizens) during removal proceedings, although bond release may be appropriate if noncitizens can prove they are not a flight risk or a danger to the community. Alejandro Rodriguez sued and argued that his prolonged detention without hearings to justify his detention violated 14th amendment due process. The California District Court (appellate court) had ruled that immigrants are entitled to bond hearings at every six months throughout their detention. The main issue for the Supreme Court was whether non-citizens were entitled to bond hearings, with the possibility of release, for detentions lasting longer than six months. Justice Alito wrote that the Immigration and Nationality Act does not give detained noncitizens the right to periodic bond hearings during the course of their detention (this also applies to immigrants with permanent legal status and asylum seekers).

Social Media and the First Amendment

 

Griffin v. State, 19 A.3d 415, (Md. Apr. 28, 2011)

Griffin was convicted of second degree murder. Prior to the trial, a State’s witness testified that defendant’s girlfriend threatened the witness; the prosecutor then sought to offer evidence through a state’s investigator that the girlfriend posted “…Snitches Get Stitches” on her MySpace account. The Court of Appeals of Maryland, held that the lower court improperly admitted the MySpace page without the girlfriend’s testimony that she created the account. The Maryland Court of Appeals disagreed with the lower court’s reasoning that the MySpace profile in question showed the “distinctive characteristics” of the girlfriend, and “that the offered evidence is what it claims to be.” The lower court found that it was proper to admit the MySpace page due to “distinctive characteristics” based on the following factors: the user’s account listed the same age, birthday, and city as the girlfriend; a witness testified the user’s profile picture was that of the girlfriend; the user mentioned her two children (the same number as the defendant’s girlfriend); and finally, the user referenced “Boozy” which was the defendant’s nickname. However, in its decision to reverse and remand, the Maryland Court of Appeals cited in part that despite these distinctive characteristics, “the [lower] court failed to acknowledge the possibility or likelihood that another user could have created the profile in issue or authored the ‘snitches get stitches’ posting.” Thus, in Maryland, under Griffin, the proponent must therefore affirmatively disprove the existence of a different creator for the evidence to be admissible.

State v. Sublet, 113 A.3d 697, 442 Md. 632 (2015) 

Sublet established Maryland’s standard that a “context-specific determination” whether the proof advanced is sufficient to support finding that the item in question (ownership of a social media page) is what its proponent claims it to be. The Court further opined on the importance of the judiciary’s role as a gatekeeper in admissibility of social media cases: “The role of judge as "gatekeeper" is essential to authentication, because of jurors' tendency, ‘when a corporal object is produced as proving something, to assume, on sight of the object, all else that is implied in the case about it.’” (emphasis, Court’s own). The Court also recognized “In the period since Griffin had been decided, cases in which authentication of social networking websites and postings has been addressed have proliferated.” In Sublet, the Court of Appeals agreed with the lower court that it was proper to exclude testimony of a witness, who testified that other people had access to her account password so other people could and had presumably accessed and changed or inserted information on the witness’ page, thereby attributing it to her. The Court reasoned, “when a witness denies having personal knowledge of the creation of the item to be authenticated, that denial necessarily undercuts the notion of authenticity.”  However, after this analysis, the court then turned its lens in Sublet to another case, Harris v. State, to show when authentication (and therefore admissibility) can be proper when the creator of the social media page does not testify about the authenticity of the page. The key is exigency and the ability to show proof of authorship. In Harris, petitioner defendant “TheyLovingTc” sent “direct messages” from his Twitter account on his phone about ‘[aveng]ing keon” to another Twitter user, “OMGitsLOCO. The Maryland Court of Appeals agreed with the State that that there were “sufficient distinctive characteristics” for the trial judge to determine that a reasonable juror could find the "direct messages" and tweets authentic; to wit, [a witness] had identified "TheyLovingTc" as Defendant’s Twitter name and that the photographs accompanying the TheyLovingTc messages were of the defendant. The State also argued that the content of the messages indicated that Harris was their author, including that they demonstrated that "OMGitsLOCO and TheyLovingTc knew about the plan for a shooting." The Court also noted “The substance of the conversation referenced a plan to "avenge keon" that had only just been created in response to events occurring that same day… That the plan subsequently came to fruition the following day also indicates that the "direct messages" were written by someone with knowledge of and involvement in the situation, which involved only a small pool of individuals.” Thus, the court was satisfied that the Twitter handle, “TheyLovingTc” actually belonged to the defendant, and was therefore authentic and the evidence gathered from the page admissible.

Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012)

The defendant unsuccessfully appealed his murder conviction by alleging the state improperly admitted information gathered from the defendant’s MySpace account, through a subpoena. The victim’s sister then testified about the information posted on a MySpace account she believed the appellant defendant was responsible for registering and maintaining. On appeal, the defendant argued “that the State did not prove that he was responsible for creating and maintaining the content of the MySpace pages by merely presenting the photos and quotes from the website that tended to relate to him.” In response, the State argued that 1) “the contents of the social networking pages in this case contained sufficiently distinctive information to justify conditionally submitting them to the jury for its ultimate finding whether "the matter in question is what its proponent claims" and the 2) specificity of the content, an ‘admission’ by the appellant, was sufficient to tie him to this particular evidence and allow the jury to consider it for that purpose.”  The Court of Criminal Appeals of Texas, noted twenty-five identifying factors of Defendant’s Myspace account that showed he was the owner of the account, including: his picture, email address, other demographic information, a link to a song played at the victim’s funeral, pictures showing his gang tattoos, references to snitches, and conversations between him and other MySpace users about the ongoing investigation. “This combination of facts…is sufficient to support a finding by a rational jury that the MySpace pages that the State offered into evidence were created by the appellant. This is ample circumstantial evidence—taken as a whole with all of the individual, particular details considered in combination—to support a finding that the MySpace pages belonged to the appellant and that he created and maintained them.” The Court noted “It is, of course, within the realm of possibility that the appellant was the victim of some elaborate and ongoing conspiracy… But that is an alternate scenario whose likelihood and weight the jury was entitled to assess once the State had produced a prima facie showing that it was the appellant, not some unidentified conspirators or fraud artists, who created and maintained these MySpace pages.”

U.S v. Meregildo, 883 F. Supp. 2d 523, 525 (S.D.N.Y., 2012). 

Defendant moved to suppress evidence gathered from his Facebook account pursuant to a search warrant. The government used a cooperating witness, who was one of Defendant’s Facebook friends to access his account. The Court held that “When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment. See Katz, 389 U.S. at 351 (1967) (citations omitted).”  However, postings using more secure privacy settings reflect the user's intent to preserve information as private and may be constitutionally protected. See Katz, 389 U.S. at 351-52 (citations omitted).” The court also stated, “Where Facebook privacy settings allow viewership of postings by "friends," the Government may access them through a cooperating witness who is a "friend" without violating the Fourth Amendment.” Here, Defendant posted information about his gang involvement, which was accessible to his Facebook friends, including the government’s cooperating witness. Therefore, he could not suppress information provided to the government from his Facebook friend.

People v. Harris.  36 Misc. 3d 868, (N.Y. City Crim. Ct. 2012)

Defendant was charged with disorderly conduct after marching on roadway of Brooklyn Bridge. The prosecutor sent Twitter a subpoena seeking information from his account related to the ongoing prosecution. Defendant moved to quash the subpoena, as did Twitter (stating it would not comply with the subpoena until the Court ruled on Defendant’s motion to quash).  The court subsequently held that the defendant had no proprietary interest in the user information on his Twitter account, and he lacked standing to quash the subpoena.  Twitter then moved to quash, and did not comply with its own subpoena. The Court held that Twitter must provide information relevant to the dates of the investigation, but newer information could be obtained only through a search warrant. The Court noted in its decision “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the Internet that now exist.  Those private dialogues would require a warrant based on probable cause in order to access the relevant information.”

US v. Gatson, 2014 U.S. Dist. LEXIS 173588, (D.N.J. Dec. 15, 2014)

Defendant was indicted for conspiracy to transport and receive stolen property.  Pursuant to a search warrant, federal agents seized a laptop and tablet, which linked to his Instagram account. Law enforcement officers also used an undercover account to become Instagram friends with defendant, who accepted the friending invitation. As a result, law enforcement officers were able to view photos and other information Gatson posted to his Instagram account.  Defendant argued there was no probable cause to search and seize information in his Instagram account. Defendant’s Instagram account displayed photographs of himself with large amounts of cash and jewelry, which were possibly the proceeds from the underlying offense. The court held that no search warrant is required for the consensual sharing of this type of information, and denied his motion to suppress.

State v. Kolanowski, 2017 Wash. App. LEXIS 215 (Wash. Ct. App. Jan. 30, 2017)

Defendant appealed his conviction for rape and unlawful imprisonment. One issue on appeal was his argument that his counsel failed to authenticate a Facebook page of the victim— a photograph he argued showed she had access to her phone and was not with him during the time of the incident. At trial, the victim testified that she did not have access to her phone at a certain time (later revealed to be when a Facebook picture of her was taken and uploaded) However, based on the record, the court ruled the introduction of the photo through proper identification “would not have advanced the defendant’s case” as “Authentication of the Facebook timestamp was at issue. Without proper authentication, the post was not relevant to the victim's credibility. But we simply cannot determine from this record what evidence the timestamp would have provided.”

Brown v. State, 796 S.E.2d 283 (Ga. Jan. 23, 2017)

Defendant appealed his conviction for murder and other charges, arguing that the introduction of the improperly-authenticated evidence at trial required a reversal of all his convictions. During the trial, three witnesses testified that he held a shotgun, and two of the three testified they saw him firing it at the victim. During the trial, city investigator and expert witness on in criminal street crimes and gang activity testified she believed defendant belonged to the Young Choppa Fam gang. The State then presented her with the eight exhibits— taken from YouTube, Facebook, and Twitter—most showing Defendant’s activity in the Young Choppa Fam gang. The witness testified she obtained the images through a public internet search. The Supreme Court of Georgia agreed with the trial court that these exhibits had not been properly authenticated, and, for that reason, it granted the motion for new trial only with respect to the count of criminal gang activity. The trial court further found that the admission of this evidence was harmless error that did not affect defendant’s remaining convictions surrounding the murder, noting the testimony of the three eyewitnesses to the murder.

Bradley v. State, 359 S.W.3d 912, 2012 Tex. App. LEXIS 1076, 2012 WL 403279 (Tex. App. Houston 14th Dist. 2012)

Two defendant brothers robbed victim, taking various personal property from victim, including victim’s own handgun. Defendant 1 pled guilty, and Defendant 2 was convicted at trial, despite Defendant 1 testifying his accomplice was another man. Throughout Defendant 2’s trial, defense relied on the theory of mistaken identity. After the robbery, victim identified both defendants on two separate locations. Victim asked someone the names of the brothers, and located them on Facebook, where Defendant 2 posed with a gun like the one stolen from victim. Victim emailed these photos to detectives and then to positively identified both men at a lineup. One of the issues on appeal was whether the lineup was improper. However, the court upheld the conviction, stating, at 918, “Even if we assume, without deciding, the arrays were impermissibly suggestive, the in-court testimony is still admissible "as long as the record clearly reveals that the witness'[s] prior observation of the accused was sufficient to serve as an independent origin for the in-court identification." Citing Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983).”


U.S. v. Browne. (3rd Cir. 2016) (D.C. No. 3-13-cr-00037-001)

The case is available at: http://www2.ca3.uscourts.gov/opinarch/141798p.pdf  Defendant began messaging an 18 year old  woman on Facebook messenger. They later met and exchanged sexually explicit photographs on Facebook Messenger. Defendant threatened victim he would release her explicit photos unless she engaged in oral sex with him. He said he would only delete the photos if she provided her password. Upon receiving her password, he logged in to her account and began messaging minors, from whom he received sexually explicit photographs. He repeated the same pattern with the minors as he did with the first victim. At trial, the Court allowed five Facebook-produced chat logs with certificates of authenticity into evidence per Federal Rules of Evidence 803(6), which the custodian certified ““were made and kept by the automated systems of Facebook in the course of regularly conducted activity as a regular practice of Facebook . . . [and] were made at or near the time the information was transmitted by the Facebook user.” App. 403; see Fed. R. Evid. 803(6).” Defendant’s appeal rested solely on the issue of the Facebook chat records not being properly authenticated and improperly introduced as evidence. In its decision to uphold the conviction, the court noted this was an issue of first impression. The court held that the records were not self-authenticating under an 803(6) analysis, but that there was sufficient extrinsic evidence to introduce them under a traditional 901 analysis (that the Government must produce sufficient evidence to support a finding the evidence is what the government claims it to be). Finally the court decided that although hearsay because the chats “at least in part to prove the truth of the matter asserted, that is, that [Defendant] sexually assaulted [a victim] and subsequently threatened her with video evidence, p. 26 , the records were admissible because erroneously admitting them “did not perceive grounds for reversal. Reversal is not warranted if it is “highly probable that the error did not contribute to the judgment.”p. 28; and the record indicated more than sufficient extrinsic evidence to link defendant to the chats and satisfy the government’s authentication burden under FRE 901. 
 

Sublet v. State, 113 A.3d 695, 442 Md. 632, 2015 Md. LEXIS 289, 2015 WL 2226252 (Md. 2015)

Petitioner Defendant was charged with assault after a fight broke out between himself and his girlfriend’s mother. During cross-examination of the mother, Defendant sought to introduce four pages of printed Facebook chat conversations she had with seven different people. Photo icons (profile pictures) of each person appeared next to the chat, along with the time of the chat and the date. The witness stated she did not write the entries on the fourth page and did not know where they came from, but she did admit to writing the exchanges appearing on the first three pages. The judge did not allow the evidence after the witness explained she gave her password to other people and could therefore not authenticate the contents. This was affirmed, as the hight court notes that to authenticate social networking evidence pursuant to Md. R. 5-901, the trial judge had to determine there was proof from which a reasonable juror could find that the evidence was what the proponent claimed. Here, because the witnesses denied making some of the exchanges, and testified she gave her Facebook password to other people, the exhibit could not be properly authenticated to be admissible.


People v. Valdez, 201 Cal. App. 4th 1429, 1434–37 (Cal. App. 4th Dist. 2011).

Defendant was convicted of various charges stemming from a drive-by shooting incident. Defendant challenged introducing printouts of his social media accounts that the State’s police expert presented at trial, containing pictures and other biographical information showing purported gang affiliation. The expert explained that although the profile is  accessible to the public, only the individual who created the profile, or one who  has access to that person’s login ID and password, can upload or manipulate content on the page. The page icon displayed a photograph of defendant's face, and the page included greetings addressed to him by name and by relation. The page owner's stated interests, including an interest in gangs, matched what the police otherwise knew of defendant's interests from their field contacts with him. A photograph on the page of defendant forming a gang signal with his right hand met the threshold required for the jury to determine its authenticity. The page was password-protected for posting and deleting content. Defendant's hearsay challenge lacked merit because the trial court did not admit the material for the truth of any assertion on the page. The gang evidence was relevant and probative. Therefore, the court held that a reasonable trier of fact could conclude from the information posted— including personal photographs, communications, and other details—that the social media profile belonged to the defendant.
 

Elonis v. U.S., 575 U.S._(2015)

Petitioner was indicted for five counts of making threats to injure various individuals including his estranged wife, co-workers and law enforcement in violation of 18 U.S.C. s. 875(c), after posting threats about his wife and co-worker on his Facebook account. His wife testified at trial that she feared the posts as serious threats, prompting her to obtain a three-year restraining order. Elonis claimed the posts were fabricated and not intended to resemble an actual individual.  After the Court of Appeals confirmed his conviction, the Supreme Court reversed the conviction and remanded the case. The Court held the statute, 18 U.S.C. s.875(c) not only requires proof that a communication was transmitted and that it contains a threat, it also requires proof of the offender’s mental state. Further, the lower court’s jury instruction regarding a reasonable person’s view of the communication is consistent with civil liability in tort law and not sufficient to meet the legal requirement for criminal conduct.  In light of the Opinion, the Supreme Court stated it is unnecessary to consider any First Amendment issue.

Bradley v. State, 359 S.W.3d 912, 2012 Tex. App. LEXIS 1076, 2012 WL 403279 (Tex. App. Houston 14th Dist. 2012).

Two defendant brothers robbed victim, taking various personal property from victim, including victim’s own handgun. Defendant 1 pled guilty, and Defendant 2 was convicted at trial, despite Defendant 1 testifying his accomplice was another man. Throughout  Defendant 2’s trial, defense relied on the theory of mistaken identity. After the robbery, victim identified both defendants on two separate locations. Victim asked someone the names of the brothers, and located them on Facebook, where Defendant 2 posed with a gun like the one stolen from victim. Victim emailed these photos to detectives and then to positively identified both men at a lineup. One of the issues on appeal was whether the lineup was improper. However, the court upheld the conviction, stating, at 918, “Even if we assume, without deciding, the arrays were impermissibly suggestive, the in-court testimony is still admissible "as long as the record clearly reveals that the witness'[s] prior observation of the accused was sufficient to serve as an independent origin for the in-court identification." Citing Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983).”

U.S. v. Browne. (3rd Cir. 2016) (D.C. No. 3-13-cr-00037-001).

The case is available at: http://www2.ca3.uscourts.gov/opinarch/141798p.pdf Defendant began messaging an 18 year old  woman on Facebook messenger. They later met and exchanged sexually explicit photographs on Facebook Messenger. Defendant threatened victim he would release her explicit photos unless she engaged in oral sex with him. He said he would only delete the photos if she provided her password. Upon receiving her password, he logged in to her account and began messaging minors, from whom he received sexually explicit photographs. He repeated the same pattern with the minors as he did with the first victim. At trial, the Court allowed five Facebook-produced chat logs with certificates of authenticity into evidence per Federal Rules of Evidence 803(6), which the custodian certified ““were made and kept by the automated systems of Facebook in the course of regularly conducted activity as a regular practice of Facebook . . . [and] were made at or near the time the information was transmitted by the Facebook user.” App. 403; see Fed. R. Evid. 803(6).” Defendant’s appeal rested solely on the issue of the Facebook chat records not being properly authenticated and improperly introduced as evidence. In its decision to uphold the conviction, the court noted this was an issue of first impression. The court held that the records were not self-authenticating under an 803(6) analysis, but that there was sufficient extrinsic evidence to introduce them under a traditional 901 analysis (that the Government must produce sufficient evidence to support a finding the evidence is what the government claims it to be). Finally the court decided that although hearsay because the chats “at least in part to prove the truth of the matter asserted, that is, that [Defendant] sexually assaulted [a victim] and subsequently threatened her with video evidence, p. 26 , the records were admissible because erroneously admitting them “did not perceive grounds for reversal. Reversal is not warranted if it is “highly probable that the error did not contribute to the judgment.”p. 28; and the record indicated more than sufficient extrinsic evidence to link defendant to the chats and satisfy the government’s authentication burden under FRE 901.

Sublet v. State, 113 A.3d 695, 442 Md. 632, 2015 Md. LEXIS 289, 2015 WL 2226252 (Md. 2015).

Petitioner Defendant was charged with assault after a fight broke out between himself and his girlfriend’s mother. During cross-examination of the mother, Defendant sought to introduce four pages of printed Facebook chat conversations she had with seven different people. Photo icons (profile pictures) of each person appeared next to the chat, along with the time of the chat and the date. The witness stated she did not write the entries on the fourth page and did not know where they came from, but she did admit to writing the exchanges appearing on the first three pages. The judge did not allow the evidence after the witness explained she gave her password to other people and could therefore not authenticate the contents. This was affirmed, as the hight court notes that to authenticate social networking evidence pursuant to Md. R. 5-901, the trial judge had to determine there was proof from which a reasonable juror could find that the evidence was what the proponent claimed. Here, because the witnesses denied making some of the exchanges, and testified she gave her Facebook password to other people, the exhibit could not be properly authenticated to be admissible.

People v. Valdez, 201 Cal. App. 4th 1429, 1434–37 (Cal. App. 4th Dist. 2011).

Defendant was convicted of various charges stemming from a drive-by shooting incident. Defendant challenged introducing printouts of his social media accounts that the State’s police expert presented at trial, containing pictures and other biographical information showing purported gang affiliation. The expert explained that although the profile is  accessible to the public, only the individual who created the profile, or one who  has access to that person’s login ID and password, can upload or manipulate content on the page. The page icon displayed a photograph of defendant's face, and the page included greetings addressed to him by name and by relation. The page owner's stated interests, including an interest in gangs, matched what the police otherwise knew of defendant's interests from their field contacts with him. A photograph on the page of defendant forming a gang signal with his right hand met the threshold required for the jury to determine its authenticity. The page was password-protected for posting and deleting content. Defendant's hearsay challenge lacked merit because the trial court did not admit the material for the truth of any assertion on the page. The gang evidence was relevant and probative. Therefore, the court held that a reasonable trier of fact could conclude from the information posted— including personal photographs, communications, and other details—that the social media profile belonged to the defendant.

Packingham v. North Carolina U.S.____ (2017)

The Supreme Court held that a North Carolina law (N.C. Gen. Stat. § 14-202.5) that made it a felony for prohibited convicted sex offenders to use social media violated the first amendment (the North Carolina legislature reasoned that convicted sex offenders knew children could make accounts on social media). Defendant, a convicted sex offender, was charged under this law after he posted information on a social media account about an unrelated traffic case. The Supreme Court held North Carolina’s statute unconstitutional, and that social media (including Facebook, Amazon, etc.) is a protected space under the First Amendment.  The Supreme Court explained that the State had not met its burden to show that “this sweeping law is necessary or legitimate to serve its purpose of keeping convicted sex offenders away from vulnerable victims.” The Court explained that North Carolina could protect children through less restrictive means, such as prohibiting "conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.”