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Massachusetts Appeals Court Concludes Message From Defendant’s Instagram Account Was Not Necessarily Written By Him

The Massachusetts Appeals Court today overturned a defendant’s conviction for violating a restraining order, concluding that the Commonwealth had not proven a message sent to his ex-girlfriend from his Instagram account was written by him.  The name of the case is Commonwealth v. McMann

The defendant and the alleged victim broke up after dating for five months, and the alleged victim obtained a restraining order against him.  The order prohibited the defendant from contacting his ex-girlfriend in any way (including electronically or in writing).  After obtaining the order, the ex-girlfriend received an Instagram message from the defendant’s account with the message “Yoooo.”  She knew the account belonged to the defendant because: she recognized his username; the account contained pictures of the defendant (including a picture of the defendant with the ex-girlfriend); and while they were dating, the defendant and the ex-girlfriend traded messages from their respective Instagram accounts.  The ex-girlfriend reported the message to the police.  The defendant met with an officer and said he had not sent the message.  He offered to show the officer his account, and when he opened the Instagram app on his phone, the message to his ex-girlfriend appeared on the screen.  The officer said the defendant looked surprised to see the message.  The defendant was charged with a single count of violating the restraining order.  He elected to waive the jury and have a trial before a Worcester District Court judge.  The judge found him guilty and the Appeals Court reversed.

The question on appeal was whether the Commonwealth had proven beyond a reasonable doubt that the defendant had sent the Instagram message to the ex-girlfriend (which would have constituted a violation of the restraining order).  There has been considerable recent litigation on the authentication of electronic communications because social media is relatively new and the judicial system is still grappling with how to process the evidence.  In 2011, the Supreme Judicial Court delivered an opinion in a case called Commonwealth v. Purdy, which has been the lead case dealing with the introduction of electronic evidence.  In Purdy, the SJC ruled that it is insufficient to prove a defendant has authored an electronic message simply because his name is listed as the author.  Instead, there must be “confirming circumstances” to connect the defendant to the message.  Such confirming circumstances may include: an admission from the defendant that he wrote the message; the presence of the message on the defendant’s hard drive (which was password-protected and only accessible to the defendant); or something about the content of the message that would lead the fact finder to conclude the defendant had written it (for example, where the defendant references a private conversation he previously had with the alleged victim).  In this case, the Appeals Court concluded the evidence established the defendant owned the Instagram account and had access to it.  However, the Commonwealth had not proven beyond a reasonable doubt that the defendant wrote “Yoooo” and sent it to the alleged victim.  There had been no evidence at trial that the defendant was the only person who had access to the account or that the account was password-protected.  Further, there was nothing distinct about the message that would allow the inference that the defendant was its author.

Because the Commonwealth’s evidence failed to establish beyond a reasonable doubt that the defendant had written and sent the Instagram message, his conviction was vacated.

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