19 A.3d 415 (Md. 2011), 74, Griffin v. State

Docket Nº74
Citation19 A.3d 415, 419 Md. 343
Opinion JudgeBATTAGLIA, J.
Party NameAntoine Levar GRIFFIN v. STATE of Maryland.
AttorneyKatherine P. Rasin, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner/cross-respondent. Robert Taylor, Jr., Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent/cross-petitioner.
Judge PanelArgued by BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ. HARRELL and MURPHY, JJ., dissent. HARRELL, J., dissenting in which MURPHY, J., joins. Judge MURPHY authorizes me to state that he joins in the views expressed in this dissent.
Case DateApril 28, 2011
CourtCourt of Appeals of Maryland

Page 415

19 A.3d 415 (Md. 2011)

419 Md. 343

Antoine Levar GRIFFIN

v.

STATE of Maryland.

No. 74-2010.

Court of Appeals of Maryland.

April 28, 2011

Page 416

Katherine P. Rasin, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner/cross-respondent.

Robert Taylor, Jr., Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent/cross-petitioner.

Argued by BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

BATTAGLIA, J.

In this case, we are tasked with determining the appropriate way to authenticate, for evidential purposes, electronically stored information printed from a social

Page 417

networking website,1 in particular, MySpace.2

Antoine Levar Griffin, Petitioner, seeks reversal of his convictions in the Circuit Court for Cecil County, contending that the trial judge abused his discretion in admitting, without proper authentication, what the State alleged were several pages printed from Griffin's girlfriend's MySpace profile. 3 The Court of Special Appeals determined that the trial judge did not abuse his discretion, Griffin v. State, 192 Md.App. 518, 995 A.2d 791 (2010), and we granted Griffin's Petition for Writ of Certiorari, 415 Md. 607, 4 A.3d 512 (2010), to consider the two questions, which we have rephrased:

1. Did the trial court err in admitting a page printed from a MySpace profile alleged to be that of Petitioner's girlfriend? [4]

2. Did the trial court err in allowing the prosecutor to define reasonable doubt incorrectly over defense objection, including saying " it means this, do you have a good reason to believe that somebody other than Mr. Griffin was the person that shot Darvell Guest ... I'm not asking you whether you can speculate and create some construct of hypothetical possibilities that would have somebody else be the shooter.... I'm asking you the question, do you have right now any reason, any rational reason to believe that somebody other than he was the shooter or gunman?" [5]

The State presented a conditional cross-petition, which we also granted, in which one question was posed:

1. Is Griffin's challenge to the probative value of the evidence preserved for appellate review? [6]

Page 418

We shall hold that the pages allegedly printed from Griffin's girlfriend's MySpace profile were not properly authenticated pursuant to Maryland Rule 5-901,7 and shall, therefore, reverse the judgment of the Court of Special Appeals and remand the case for a new trial.

Griffin was charged in numerous counts with the shooting death, on April 24, 2005, of Darvell Guest at Ferrari's Bar in Perryville, in Cecil County. During his trial, the State sought to introduce Griffin's girlfriend's, Jessica Barber's, MySpace profile to demonstrate that, prior to trial, Ms. Barber had allegedly threatened another witness called by the State. The printed pages contained a MySpace profile in the name of " Sistasouljah," describing a 23 year-old female from Port Deposit, listing her birthday as " 10/02/1983" and containing a photograph of an embracing couple. The printed pages also contained the following blurb:

FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!

When Ms. Barber had taken the stand after being called by the State, she was not questioned about the pages allegedly printed from her MySpace profile.

Instead, the State attempted to authenticate the pages, as belonging to Ms. Barber, through the testimony of Sergeant John Cook, the lead investigator in the case. Defense counsel objected to the admission of the pages allegedly printed from Ms. Barber's MySpace profile, because the State could not sufficiently establish a " connection" between the profile and posting and Ms. Barber, and substantively, the State could not say with any certainty that the purported " threat" had any impact on the witness's testimony; the latter argument is not before us.

Defense counsel was permitted to voir dire Sergeant Cook, outside of the presence of the jury, as follows:

[Defense Counsel]: How do you know that this is her [MySpace] page?....

[Sergeant Cook]: Through the photograph of her and Boozy on the front, through the reference to Boozy, [ ] the reference [to] the children, and [ ] her birth date indicated on the form.

[Defense Counsel]: How do you know she sent it?

[Sergeant Cook]: I can't say that.

[The Court]: I failed— I am sorry. I misrepresented. I failed to realize there is a photograph there. It's in the block

Page 419

that says " Sistasouljah," and then there's a photograph of a person that looks like Jessica Barber to me.

[Defense Counsel]: When was it sent?

[Sergeant Cook]: That is a MySpace page. That wasn't particularly sent. That is on the web, and it's accessible to whoever views MySpace. It is open to the public.

[Defense Counsel]: I understand that. When did it get posted?

[Sergeant Cook]: The print date on the form, printed on 12/05/06.

[The Court]: You can tell by looking at it because that's when he went to it.

[Defense Counsel]: So that would have been after the first trial. So how could that possibly affect [the witness]? He said it was before the first trial.

[The Court]: On its face, there is no way that you can conclude that on its face this establishes anything in regard to [the witness]. What it's being offered for, as I understand it, is corroboration, consistency that she's making a statement in a public forum, " snitches get stitches." And I guess the argument is going to be made that that's consistent with what [the witness] said, that she threatened him.

[Assistant State's Attorney]: That's correct.

[The Court]: It's weak. I mean, there is no question it's weak, but that's what it is offered for.

The trial judge, thereafter, indicated that he would permit Sergeant Cook to testify in support of authentication of the redacted portion of the pages printed from MySpace, containing the photograph " of a person that looks like Jessica Barber" and the Petitioner, allegedly known as " Boozy," adjacent to a description of the woman as a 23 year-old from Port Deposit, and the blurb, stating " FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!"

In lieu of Sergeant Cook's testimony, while maintaining his objection to the admissibility of the redacted MySpace page, defense counsel agreed to the following stipulation:

If asked, Sergeant Cook would testify that he went onto the Internet to the website known as MySpace.... [F]rom that site he downloaded some information of a posting that someone had put there.

That posting contains a photograph which the witness would say he recognizes as a photograph of Jessica ... Barber, who testified, ... that she is the defendant's live-in fiance; and that it also contains a date of birth, to wit October 2nd, 1983, which the witness would testify is the date of birth that Jessica Barber gave as her date of birth.

When the exhibit, the download, comes to you, you are going to see that it has a great— that most of its content has been redacted; that is, blacked out. That's because some of it, in my judgment, might tend to be inflammatory without proving anything one way or the other. There is one portion of it that will not be redacted when it comes to you, and this is the only portion of it which you should consider. And you certainly should not speculate as to what any of the redacted portions may be.

The portion that will not be redacted says, just remember snitches get stitches. You will see that. The phrase is, just remember snitches get stitches.... And ... the witness would testify that the date it was retrieved was ... December 5, 2006.

Whether the MySpace printout represents that which it purports to be, not only a MySpace profile created by Ms. Barber,

Page 420

but also upon which she had posted, " FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!," is the issue before us.

With respect to social networking websites in general, we have already had occasion, in Independent Newspapers, Inc. v. Brodie, 407 Md. 415, 424 n. 3, 966 A.2d 432, 438 n. 3 (2009), to describe those sites as " sophisticated tools of communication where the user voluntarily provides information that the user wants to share with others." 8 A number of social networking websites, such as MySpace, enable members " to create online ‘ profiles,’ which are individual web pages on which members [can] post photographs, videos, and information about their lives and interests." Doe v. MySpace, Inc., 474 F.Supp.2d 843, 845 (W.D.Tex.2007).

Anyone can create a MySpace profile at no cost, as long as that person has an email address and claims to be over the age of fourteen:

MySpace users create profiles by filling out questionnaire-like web forms. Users are then able to connect their profiles to those of other users and thereby form communities. MySpace profiles contain several informational sections, known as " blurbs." These include two standard blurbs: " About Me" and " Who I'd Like to Meet." Users may supplement those blurbs with additional sections about their interests, general additional details, and other personal information. MySpace profiles also incorporate several multimedia features. For instance, users may post photos, music, videos, and web logs to their pages.

Richard M. Guo, Stranger Danger and the Online Social Network, 23 Berkeley Tech. L.J. 617, 621 (2008) (footnotes omitted). After a profile is established, the user may invite others to access her profile, as a " friend," who if the user accepts the befriending, can access her profile pages without further ado:

Users establish virtual communities by linking their profiles in a...

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63 practice notes
  • 113 A.3d 695 (Md. 2015), 42-2014, Sublet v. State
    • United States
    • Maryland Court of Appeals of Maryland
    • April 23, 2015
    ...opinion. All three cases involve the same legal issues, those being the elucidation and implementation of our opinion in Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011), in which we addressed the admissibility of a screenshot3 of a MySpace4 page, and its application to the Page 698 authen......
  • State v. Gibson, 050115 OHCA6, L-13-1222
    • United States
    • Ohio Court of Appeals of Ohio
    • May 1, 2015
    ...for fabricating or tampering with electronically stored information on a social networking sight" is high. Griffin v. State, 419 Md. 343, 19 A.3d 415, 421 (2011). See also Campbell v. State, 382 S.W.3d 545, 550 (Tex.App.2012) ("Facebook presents an authentication concern * * * bec......
  • 363 P.3d 736 (Colo.App. Div. 3 2015), 13CA0098, People v. Glover
    • United States
    • Colorado Court of Appeals of Colorado
    • February 26, 2015
    ...sent from a Facebook account bearing [the defendant]'s name to an account bearing [the victim]'s name" ); see also Griffin v. State, 419 Md. 343, 19 A.3d 415, 428 (Md. 2011) (One possible method for authenticating a social networking profile is " to obtain information directly fro......
  • People v. Glover, 022615 COCA, 13CA0098
    • United States
    • Colorado Court of Appeals of Colorado Third Division
    • February 26, 2015
    ...sent from a Facebook account bearing [the defendant]'s name to an account bearing [the victim]'s name"); see also Griffin v. State, 19 A.3d 415, 428 (Md. 2011) (One possible method for authenticating a social networking profile is "to obtain information directly from the social ne......
  • Request a trial to view additional results
54 cases
  • 113 A.3d 695 (Md. 2015), 42-2014, Sublet v. State
    • United States
    • Maryland Court of Appeals of Maryland
    • April 23, 2015
    ...opinion. All three cases involve the same legal issues, those being the elucidation and implementation of our opinion in Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011), in which we addressed the admissibility of a screenshot3 of a MySpace4 page, and its application to the Page 698 authen......
  • State v. Gibson, 050115 OHCA6, L-13-1222
    • United States
    • Ohio Court of Appeals of Ohio
    • May 1, 2015
    ...for fabricating or tampering with electronically stored information on a social networking sight" is high. Griffin v. State, 419 Md. 343, 19 A.3d 415, 421 (2011). See also Campbell v. State, 382 S.W.3d 545, 550 (Tex.App.2012) ("Facebook presents an authentication concern * * * bec......
  • 363 P.3d 736 (Colo.App. Div. 3 2015), 13CA0098, People v. Glover
    • United States
    • Colorado Court of Appeals of Colorado
    • February 26, 2015
    ...sent from a Facebook account bearing [the defendant]'s name to an account bearing [the victim]'s name" ); see also Griffin v. State, 419 Md. 343, 19 A.3d 415, 428 (Md. 2011) (One possible method for authenticating a social networking profile is " to obtain information directly fro......
  • People v. Glover, 022615 COCA, 13CA0098
    • United States
    • Colorado Court of Appeals of Colorado Third Division
    • February 26, 2015
    ...sent from a Facebook account bearing [the defendant]'s name to an account bearing [the victim]'s name"); see also Griffin v. State, 19 A.3d 415, 428 (Md. 2011) (One possible method for authenticating a social networking profile is "to obtain information directly from the social ne......
  • Request a trial to view additional results
7 firm's commentaries
  • November 2017: Trial Practice Update
    • United States
    • JD Supra United States
    • November 22, 2017
    ...suffices for a reasonable jury to find the evidence authentic. The first line of cases is best exemplified by Griffin v. State, 419 Md. 343 (2011). There, the state sought to introduce a post from the MySpace profile of the defendant’s girlfriend, stating, “snitches get stiches.” Although t......
  • Bot or Not? Authenticating Social Media Evidence at Trial in the Age of Internet Fakery
    • United States
    • JD Supra United States
    • November 11, 2020
    ...et al., WEINSTEIN’S EVIDENCE ¶ 901(a), at 901–19 (1996)). 8 United States v. Browne, 834 F.3d 403, 412 (3d Cir. 2016). 9 Griffin v. State, 19 A.3d 415, 423 (Md. 10 See, e.g., id. 11 See, e.g., Tienda v. State, 358 S.W. 3d 633, 634–35 (Tex. Crim. App. 2012). 12 See Grimm, supra note 6, at 45......
  • Can You Be “Served” or “Notified” Electronically?
    • United States
    • JD Supra United States
    • March 2, 2015
    ...of service of process or notice by electronic means has not been fully addressed in Maryland. However, in Griffin v. State of Maryland (419 Md. 343, 19 A.2d 414 (2011)) the Maryland Court of Appeals held that the State had failed to properly “authenticate” a MySpace® page it sought to intro......
  • At the Intersection of Technology and Law: Recent High Court Rulings Related to Social Media.
    • United States
    • JD Supra United States
    • June 7, 2015
    ...under another person’s name or can gain access to another’s account by obtaining the user’s username and password”. Id. at 352, 19 A.3d at 421. This led to an examination of Maryland Rule 5-901(b)(1) and (4) and the identification of three non-exclusive means of authentication of ownership ......
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2 books & journal articles
  • When is a tweet not an admissible tweet? Closing the authentication gap in the Federal Rules of Evidence.
    • United States
    • University of Pennsylvania Law Review Vol. 164 Nbr. 4, March - March 2016
    • March 1, 2016
    ...http://www.fjc.gov/public/pdf.nsf/ lookup/eldscpkt.pdf/$file/eldscpkt.pdf [https://perma.cc/Y6KR-JEQT])). (68) See Griffin v. State, 19 A.3d 415, 422 (Md. 2011) ("The potential for fabricating or tampering with electronically stored information on a social networking site, thus poses s......
  • E-discovery: where we've been, where we are, where we're going.
    • United States
    • Ave Maria Law Review Vol. 12 Nbr. 1, January - January 2014
    • January 1, 2014
    ...L. Paul, Foundations of Digital Evidence (2008). (53.) Griffin v. State, 995 A.2d 791 (Md. Ct. Spec. App. 2010). (54.) Griffin v. State, 19 A.3d 415 (Md. 2011). (55.) Id. at 423. (56.) Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012). Crawford v. Washington, 541 U.S. 36 (2004). Melend......