Supreme Judicial Court, May 21, 2010

Testimony about MySpace messages received (or sent) from someone were improperly admitted without testimony to identify the person who actually sent the communication, and/or expert testimony that no one other than that person could communicate from that particular web page.

The defendant was convicted by a jury of murder in the first degree on a theory of deliberate premeditation. The defendant appealed on multiple grounds including the admission of the contents of "MySpace" computer messages. The SJC agreed that the admission of this evidence was error. However, the convictions were affirmed since the error did not constitute a substantial likelihood of a miscarriage of justice.

On the fourth day of trial, a witness testified that the defendant's brother had contacted her four times on her MySpace account urging her not to testify against the defendant, or to claim lack of memory about the events on the night of the murder. She also testified that the person who sent the messages, Williams, was the defendant's brother, that he had a picture of himself on his MySpace account, and that his MySpace name was "doit4it." She testified that she had received the messages at issue from Williams, and the document (which had been marked for identification but was not admitted) indicated that those messages were in fact sent by the user with the screen name "doit4it" and bore a picture of Williams. She also testified that she responded to three of the four messages, and that he sent communications back to her. She printed out the messages at the court house that day and the prosecutor provided them to defense counsel immediately after receiving them (which the SJC held was proper notice and discovery by the Commonwealth to defense counsel).

The SJC held the testimony was improperly admitted. Although it appeared that the sender of the messages was using Williams' MySpace Web "page," there was no testimony (from anyone) regarding how secure the web page was, who could access a MySpace web page, whether codes are needed for such access, etc. "Analogizing a MySpace web page to a telephone call, a witness' testimony that he or she has received an incoming call from a person claiming to be 'A,' without more, is insufficient evidence to admit the call as a conversation with 'A.'" While the testimony established that the messages were sent by someone with access to Willliams' MySpace page, it did not identify the person who actually sent the communication. Also, there was no expert testimony that no one other than Williams could communicate from that web page.