The Missouri Court of Appeals recently held that the trial judge properly excluded an assault victim's Facebook status updates in a criminal case.  (State v. Corwin, Case No. SD29422, Southern District, Division One; August 20, 2009) (h/t Prof. Goldman)

The Basic Facts of the case are that the victim and defendant (and some others) went out and had some drinks.  The victim accompanied the defendant to his dorm room where the defendant assaulted or attempted to assault the victim.  The defendant's argument at trial was that the victim's recollection of the evening in question was suspect.  In seeking to discredit the victim's story, the defendant tried to introduce evidence of the victim's Facebook page, which contained status updates describing the victim's lifestyle, including nights of drinking and mornings where the victim could not remember exactly what transpired the night before.  None of the updates related to the evening in question, but one update did state that victim went out one night (some time after the event it seems) and could not remember where she got certain bruises.  The trial court excluded the evidence.  Although the defendant objected, defendant did not raise this objection in his request for a new trial (or motion for judgment notwithstanding the verdict). 

The Court of Appeals reviewed the evidentiary ruling for "clear error," given the defendant's failure to raise this objection at the post-trial phase [harsh!].  The court noted that "the complaining witness in a sex offense case may be impeached by evidence that her general reputation for truth and veracity is bad but not ordinarily by proof of specific acts of misconduct."  Ultimately, the court found that the trial court properly excluded the evidence:

Here, the information contained in Exhibit A went beyond any evidence even tangentially related to events of the night in question and detailed prior instances of what could be termed misconduct on the part of Victim. Exhibit A contained quotes, information, photographs, and comments about almost all aspects of Victim's life including references to partying, sex, drinking, schoolwork, and at least one sexually suggestive photograph. None of this information is legally relevant to the fact that Appellant was charged with the attempted forcible rape of Victim. Even the quote at issue relating to an instance some nine months after the event in question where Victim might have received bruises after an evening out on the town is legally irrelevant and is not directed at Victim's reputation for truth and veracity. Evidence that Victim had been bruised on another occasion when intoxicated neither proves nor disproves that her bruises on the day of the attempted rape were from an alcohol related accident, instead of Appellant's violent actions toward her. It was permissible for Appellant's counsel to ask Victim whether she had received bruises in the past after a night of drinking; however, her Facebook profile page was not admissible to challenge her answer on this collateral matter.

(emphasis added)

***

What to make of this?  With the gigantic caveat that I'm not a criminal lawyer, the court's conclusion that stuff relating to her drinking and going out were properly excluded seems sound.  This is general reputation evidence that is off limits in an assault case.  On the other hand, if the victim had in the past gone out and received bruises that the victim could not recall the details of, this seems like a fair subject of inquiry.  And to the extent the victim's response doesn't conform to the Facebook postings, my instinct is that the postings could properly be used to impeach.  Maybe it's too collateral?  But given the common circumstances between the Facebook posting and the evening in question..The opinion is somewhat convoluted, so it's tough to get a clear sense of what exactly the court is saying should have come in, if anything.  Either way, clear error..no luck for defendant.  It doesn't seem like the evidentiary ruling made a huge difference one way or the other.

Facebook status updates and postings from other networks are being used more and more in judicial proceedings.  There's nothing exceptional about this really, except for the fact that the evidence exists, and is so readily available (it's almost an evidentiary bonanza for lawyers).  (I'm curious as to how they obtained the postings here..maybe through a Facebook friend?  I would guess Facebook would respond to a subpoena, but I wonder what hoops Facebook would make the lawyers jump through.)  Think of it this way.  Your diary entries and communications with your friends are typically admissible in a case.  In fact, they are some of the best indicators of what you were thinking.  And that's exactly what Facebook is.  A giant diary of sorts in the sky.  Just one that is readily accessible to lawyers.  In the old days, opposing counsel may or may not come across your diary.  They may not ask you about it.  You may not be entirely truthful.  Either way, with Facebook, chances are high that if you have a profile, opposing counsel will come across it, and will try to use your postings.