Chapter 13: Privileges
Case Study 1
Overview — Based on: Murray v. State, 2017 Tex. App. LEXIS 5651 (2017).
A runaway female, C.J., age 13, made an allegation that she met the defendant, Allen Murray, after she ran away from home. She alleged that the defendant allowed her to stay with him and that he took pictures of her and posted them on his Facebook page in order to advertise her availability for sexual activity with men. She indicated to police officers that she had sexual intercourse with at least three men before she left the defendant’s house and returned to her grandmother’s home. Subsequently, she ran away from her grandmother’s place of residence after stealing the grandmother’s motor vehicle. She ended up in a juvenile detention center where she made the initial allegation against defendant Murray to police.
A police officer from the Department of Public Safety initiated an investigation and prepared a report that included the officer’s observation of the defendant’s Facebook page as it would appear to the public. The officer confirmed that Murray’s Facebook page contained sexually provocative pictures of the juvenile, C.J. A different police officer, who worked as an investigator for the District Attorney’s Office of Bexar County, prepared an affidavit for a search warrant and ultimately procured a search warrant for defendant Murray’s Facebook account. The results of the warrant revealed more information about Murray’s account, his profile, and his private messages contained within the account. As a result of CJ’s statements, the public availability of the defendant’s Facebook page, the provocative pictures contained on the Facebook page, and other information, the county prosecutor brought Murray to trial for child trafficking and compelling prostitution.
At the trial, the prosecutor introduced evidence of the provocative pictures of C.J. that had been posted on the Facebook page assigned to defendant Murray as well as some of the private messages that had been received and written relating to CJ’s photographs. The State offered evidence of the genuineness of Murray's Facebook account by way of a “Certificate of Authenticity of Domestic Records of Regularly Conducted Activity” executed by Facebook's Records Custodian. The defendant was convicted of one count of compelling prostitution. He perfected an appeal. One of the issues that he used as a basis for his appeal involved the allegation that the evidence from the Facebook page was not appropriately authenticated and should not have been admitted into court. He argued that the prosecution failed to prove that he created the Facebook page and failed to prove that he was the one who maintained the content that appeared on the page. The results of the search warrant revealed that a person with the defendant’s name initiated the Facebook account. The juvenile, C.J., stated that the pictures on the account were of her. According to the prosecution, the Facebook account and its contents were properly authenticated and properly admitted into evidence.
Yes. Among other issues that the defendant raised on appeal, a crucial issue concerned the authentication of the Facebook page that contained incriminating information against the defendant. His contention that the government failed to prove that he was the individual responsible for creating and maintaining the contents of the Facebook pages was a crucial aspect of his appeal.
The reviewing court indicated that the prosecution had no duty to establish conclusively that the defendant authored the information on the Facebook page, but it must present some reasonable level of evidence so that a jury could find that the defendant created the contents of the Facebook page.
The court noted that in today’s electronic world, computers can be hacked, and cell phones stolen, hacked, and the data stolen. Such facts raise issues concerning the genuineness of information that can be obtained from such sources. The most appropriate method by which electronic evidence may be identified concerning authorship depends clearly upon the nature of the evidence in the circumstances of the particular case.
By way of analogy, the appellate court referred to a prior decision [Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)] in which electronic content from a MySpace account needed to be authenticated. In this prior case, the government brought forth circumstantial evidence to show the authorship of the MySpace pages, which included photographs of the appellant with visibly unique arm, body, and neck tattoos. In addition, the defendant was wearing distinctive glasses and an earring, and made references, among other things, to having been required to wear an ankle monitor for a year. Included on the MySpace pages was a photograph of the appellant displaying the ankle monitor. The unique connection between the MySpace pages and the defendant served to authenticate the data that had been exhibited on the MySpace account. In that prior case, the reviewing court approved the admission of the evidence from the MySpace account as having been properly authenticated.
The appellate court, in this case, rejected the defendant-appellant’s contention that the Facebook account had not been properly authenticated. The court observed that:
[T]he State introduced sufficient circumstantial evidence of photographs, comments, and private messages from the Facebook account to establish a prima facie case such that a reasonable jury could find Murray created and maintained the contents of the Facebook account. Consistent with C.J.’s testimony that Murray took photos of her and posted them on Facebook, photos of C.J. were posted on the Facebook account bearing the name "Allen Murray." C.J. identified Murray as the other person in one picture with her. The post relating to that photograph of C.J. reads "For sale hmu" and shows "August 24" as the date of the post.
The court also noted that the tag line, “For sale hmu” that was on the Facebook page was also referenced by the defendant in correspondence with potential online prostitution customers interested in C.J. In concluding that the conviction should be sustained, the court believed that the prosecutor presented sufficient prima facie evidence that would support findings by a reasonable jury that the Facebook data was what it purported to be and that such data had been created by defendant Murray.
See Chapter 13, Section 13.5 and 13.5(B).
Case Study 2
Overview — Based on: Vanpelt v. State, 74 So.3d 32, 2009 Ala. Crim. App. LEXIS 166 (2009); Rehearing denied by: Vanpelt v. State, 2010 Ala. Crim. App. LEXIS 686 (2010).
A trial court convicted defendant Kim Vanpelt of capital murder for killing his wife, Sandra Vanpelt, for pecuniary gain. The defendant was the beneficiary of a $300,000 life insurance policy on his wife that had been in force for about two weeks. One of the elements that the prosecution had to prove was that the defendant had structured his personal life in a way that he would benefit financially from the death of his new bride. The policy had “conditional coverage,” a provision that meant that it was in force unless a pre-existing condition of health was uncovered. One insurance agent testified that Vanpelt gave her a check for the amount of the first month’s premium that ensured that both spouses’ policies were in force. She testified that the agent’s normal practice was to have the insurance purchaser sign a receipt and the agent would give the purchaser the original receipt. Neither the agent nor the company typically retained a copy of the conditional receipt, and only the purchaser would have that document. The company did retain an exact copy of the policy and its terms and conditions. The insurance agent testified that after Vanpelt gave her the check for the premiums, he called her several times to verify that the policies were in effect.
The trial judge allowed the prosecution to question two insurance agents who had dealings with the Vanpelts concerning the recent life insurance purchases. However, defendant Kim Vanpelt’s counsel objected to the testimony about the insurance contracts on the ground that the testimony violated the best-evidence rule.
Kim Vanpelt argued that the testimony regarding the terms of Sandra’s life insurance policy violated the rules of evidence. Specifically, the defendant argued on appeal that testimony concerning the fact that Sandra had “conditional coverage” and evidence concerning the terms of the life insurance policy were admitted in error because the State should have introduced the original written document signed by Kim Vanpelt containing the policy terms and the terms of the conditional coverage.
According to Alabama’s version of the best-evidence rule, a party wishing to prove the contents of a writing must produce the original writing, subject to exceptions that it has been lost or stolen or destroyed through no culpable responsibility of the offering party. Only when the contents of writing are at issue does Alabama law require proof of the original. In addition, a witness does not run afoul of the best-evidence rule simply because there happens to be a writing memorializing the matter to which the witness has testified. The testimony of two witnesses who testified concerning the insurance company’s agreement with the defendant, which was memorialized by a writing, was not admitted to prove the contents of the writing, but was admitted only to prove that the written document existed. Therefore, since the contents of the document were not at issue, the trial court held that the best-evidence rule should not be applied.
Yes. To prove the contents of a writing, the general rule is that the original writing is required and must be introduced in court. The rule is designed to reduce the chances of fraud or misunderstanding concerning the contents of a document. If the contents of the writing are not at issue and the issue concerns the existence of the document, the original need not be produced. For example, an event that has occurred may be proved by oral testimony even if a writing has memorialized the existence of the event. A marriage may be proven to have happened by oral testimony even though a marriage certificate exists.
See Chapter 13, Section 13.4 and Section 13.6.
Yes. The trial judge ruled properly concerning the testimony of the insurance agents because the issue was not to explain the details of the actual policies but was whether the policies existed and were in force. Here, the contents of the written policies were not relevant to the case that the prosecutor needed to prove (so as to find the defendant guilty of killing for pecuniary gain), and the best-evidence rule had no application. See Chapter 13, Section 13.6.
Yes. If, for some reason, the minute details of the policy became important for the prosecution to prove its case, generally the prosecution would have to produce the original policy. However, since the policy was written in duplicate and the defendant allegedly signed the duplicate copies, all the duplicate copies would qualify as duplicate originals and would be admissible even if the original were not introduced. In addition, if the original were in the hands of the defendant and could not be obtained by the prosecution, secondary evidence would generally be admissible in court.
See Chapter 13, Section 13.6 and Section 13.7.