The Massachusetts Appeals Court today reversed a juvenile’s conviction for indecently assaulting a female acquaintance, ruling that the trial judge committed error by introducing a transcript of the alleged victim’s interview with law enforcement. The name of the case is Commonwealth v. Foster F.
The defendant had been communicating with the alleged victim and two of her friends on Facebook. At some point they all met and went ice skating together. Two weeks later, the group met again. The defendant and the alleged victim left together and began kissing on a park bench. According to the Commonwealth, the defendant became increasingly aggressive and ultimately pinned the alleged victim on the ground. He then forced his hand inside of her pants and inserted several fingers into her vagina. The defendant stopped when the alleged victim’s two friends reappeared. He was convicted of indecent assault and battery.
The defendant appealed his conviction on two fronts. He first objected to the Commonwealth’s introduction of Facebook message exchanged between him and the alleged victim. He also objected to the Commonwealth’s introduction of a transcript of the alleged victim’s interview.
Issues involving Facebook and other social media are becoming increasingly prevalent in Massachusetts courtrooms. Defendants, alleged victims, and witnesses often communicate with each other on Facebook, and their communications sometimes deal with court cases. The Commonwealth has two problems admitting Facebook records into evidence. First, in order for Facebook records to be admissible, a Facebook employee (known as the “keeper of the records”) needs to send the records directly to the courthouse with a certification that the records were kept in the ordinary course of business. For a long time, Facebook was not responding to requests to produce records, which made them inadmissible in court. In this case, the Appeals Court mentioned that the Facebook records were accompanied by an affidavit from the keeper of the records, so the records qualified as business records. Secondly, the Commonwealth has to prove, by a preponderance of the evidence (more likely than not) that the Facebook messages were actually written by the defendant. In this case, the trial judge concluded (and the Appeals Court affirmed) that there was sufficient confirmation that the defendant had written the messages because he appeared at the park to meet the alleged victim and her friends exactly as he proposed in his Facebook messages. Therefore, in this case, the Commonwealth satisfied it obligation to present certified Facebook records that were more likely than not authored by the defendant.
The defendant’s second appellate issue involved the introduction of the transcript of the alleged victim’s interview. In most child sexual assault cases, the alleged victim participates in a SAIN (Sexual Abuse Investigation Network) interview. The interview is typically conducted at the District Attorney’s Office, where the child is questioned by a trained child interview specialist. Several people, including an assistant district attorney, a victim witness advocate, a Department of Children and Families representative, and a police detective usually watch the interview through a one-way mirror. The interview is taped and provided to the defendant. While the Commonwealth believes there are advantages to SAIN interviews, I have found that they always benefit the defendant at trial. The interviews are lengthy and in-depth, and there are always inconsistencies between the interview and the alleged victim’s trial testimony that can be exploited in front of a jury. In this case, the defense attorney confronted the alleged victim regarding whether she agreed to walk with the defendant to an area where they could not be seen by other people. In response, the prosecutor asked the judge to introduce the entire transcript of the alleged victim’s SAIN interview to the jury. Over the defendant’s objection, the judge allowed the transcript to be given to the jury. The Appeals Court ruled that introduction of the transcript was error. The problem was that the transcript contained the alleged victim’s statements that different friends had said the defendant was a “perv,” which the Appeals Court characterized as “devastating” to the defendant’s case. Such general character evidence is inadmissible against criminal defendants in Massachusetts. Accordingly, the Appeals Court reversed the defendant’s conviction.