Defendant’s on-line postings about his “reckless drunkenness” come back to haunt him

The Background
A young woman came home on May 25, 2007 and found her 2 year old daughter unconscious. A call is placed to 911, and police arrive to find the girl limp, with a crushed jaw and multiple injuries. She was declared dead. The woman’s fiancée, Ian Clark, was babysitting for the little girl at the time.

The Allegations
Clark was charged with the girl’s murder and convicted in an Indiana court. Clark’s attorney, Brad Voelz, objected to the conviction on several grounds, including his allegation that the lower court had inappropriately permitted the State to introduce electronic evidence that Clark had posted to his “My Space” account describing his own previous reckless drunken behavior. This electronic evidence was used to corroborate other courtroom testimony about Clark’s character as a “reckless drunk”. Clark’s attorney claimed the introduction of the My Space postings violated Clark’s rights.

The Result
The Indiana Supreme Court did not buy it, and they upheld the lower court’s decision, validating the conviction. Indiana Supreme Court Justice Randall Shepard put it this way….
“Clark’s posting contained only statements about himself and in reference to himself. Thus, the
State is right to observe that this is solely evidence of his own statements, not of prior criminal acts.”

This ruling essentially places “My Space” postings into the same category as letters, diaries, phone and personal conversations and other written records that individuals create that courts have historically allowed into evidence in civil and criminal proceedings

The Take-Aways

  1. Electronic Discovery is not Just about E-Mail anymore. Electronically Stored Information (ESI) is everywhere. People are generating long-lasting ESI with little regard to its permanence, discoverability, or the unintended consequences of its creation. My Space postings, Facebook, “Linked-In” profiles, personal blogs, and other on-line forums are ubiquitous. They are also discoverable. Attorneys should target this ESI in investigations and litigation when appropriate.
  2. Recovered electronic evidence of this type can be applied to a wide-variety of matters. Consider these case studies…
    • A person suspected of financial crimes skips town but then can not resist the temptation of updating his Linked-In networking profile so his friends can keep in touch with him at his new address. Litigators checked his profile and were able to track him down.
    • A software engineer brags about a project he is working on at his new job on a popular technology blog site and is then sued by his former employer for trade secret theft. Exhibit A? His blog posts, of course.
    • A woman accuses a co-worker of sexual harassment but friendly and flirty photos of her with he accused are found on her social networking site. The accused uses those photos to vindicate himself.
  3. This type of ESI can be fleeting. Check for this type of ESI early and have it forensically preserved so it can be authenticated and produced in an evidentiary fashion when needed. Harvest and archive this data before you file your case. These electronic comments can disappear, and are sometimes retained by the service providers for short periods of time. Act fast.