Electronic Evidence From Instagram – In Re K. B.

In the published portion of the opinion In Re K.B., (2015), Case No. A140960, 2015 WL 4397762, —Cal.Rptr.3d. –, the California Court of Appeal, First District, Division 4 applied the California Supreme Court’s recent guidance on authentication of electronic evidence in People v. Goldsmith (2014) 59 Cal.4th 258 and concluded there was no error in admitting the photographic evidence from the social media site, Instagram.

The full text of the opinion can be read here – in_re_KB_A140960_CAcourtofappeal1st


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Motion in Limine Changes at Alameda Superior Court

Effective July 1, 2014 each motion in limine requires a $60 fee.  Read the full announcement on the Court’s webpage

If you’d like to read about introducing evidence and motions in limine, see Laying a foundation to introduce evidence (preparing and using evidence at trial)  by Donald F. Miles. [A CEB action guide] 2012. KFC 1030 .Z9 M55 2012 — Action Guides Area

For more guidance from CEB, consider searching “motion in limine” in the CEB OnLaw database available at both the Oakland or Hayward branches of the law library.

See also Civil Practice Guide: California Motions in Limine available in both the Oakland and Hayward branches through the library’s WestLawNext subscription.

You can help keep the valuable research tools available in the law library by making a tax-deductible gift to the Alameda County Law Library online, by calling or mailing to Alameda County Law Library, 125 12th St., Oakland, CA 94567.






New in the Library

Social media as evidence

Social Media as Evidence: Cases, Practice Pointers, and Techniques,by Joshua Briones, Ana Tagvoryan,
Law Practice Division, ABA, March 2013
KF 8947.5 .B75 2013 New Books Cart

The ABA in its advertisement says that the “smoking gun tweet” has replaced the “smoking gun” in evidentiary matters. They further claim, mixing their metaphors, that social media sites, such as Facebook, Twitter, blogs and other social media channels, are “gold mines” of discovery for discrediting witnesses and weakening a company’s litigation position. Despite the mixed metaphors, which really only bothers a small group of us English majors, the ABA is right and this handy little
book (only 109 pages) packs a lot of valuable information. The use of the internet, and social media specifically, is exploding and with it valuable information.

The authors include specific sources for gold mining and uses of those nuggets. Linkedin with its resumes is a good place to catch a witness in a contradictory statement. Linkedin connections provide contacts who might supply you with more insight into your opponents, their witnesses and experts. Social media channels are good sources for researching potential jury members and for monitoring them during trial. The major social media sites, including Facebook and Twitter, are explored for their potential value. In the next step, you will need to assay those nuggets. You must authenticate the data you have obtained from social media and this book will explain how.

The ethical rules and procedures for use and preservation of such evidence are important. Failure to comply can result in serious sanctions. For instance, compliance with litigation holds must include social media data. As for ethics, do you know if you can “friend” a represented adverse party, a judge? These and other other ethical situations are explored.

The book is full of great practice pointers and sample forms to help you draft documents such as litigation hold memos, document preservation notices, and sample interrogatories and document requests.

This is an excellent starting point for learning about the advantages and pitfalls of using social media in litigation.

Evidentiary (and penological) dilemmas concerning twins

The term, “burden of proof,” represents a party’s obligation to prove a fact to the court with the requisite degree of certainty.  California Evidence Code section 115 lists those degrees of certainty as “rais[ing] a reasonable doubt, . . . establish[ing] the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.”

In Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1205, the Third District Court of Appeal discussed the burden in civil cases:

In a civil case the party with the burden of proof must convince the trier of fact that its version of a fact is more likely than not the true version.  Stated another way, it requires the burdened party to convince the trier of fact that the existence of a particular fact is more probable than its nonexistence—a degree of proof usually described as proof by a preponderance of the evidence.

Accordingly, the burdened party will prevail if he or she establishes a fact as more likely than not—even by the slimmest of margins.  But what happens when that party can only establish a fact to an exact 50% likelihood?  A favorite law school hypothetical presents this situation in this manner: One of a pair of identical twins commits a tortious act against a victim.  In the ensuing civil case, the victim has the burden of proving by a preponderance of the evidence that a certain individual harmed him or her.  While it can be proven that one of the twins committed the act, the victim cannot determine which of the two the actual perpetrator was.  As far as the victim can tell, each twin is exactly as likely to be the tortfeasor as not—in other words, each would be exactly 50% likely to be the cause of the injury.  What would a court do in such a situation?  A British court was faced with this precise question when the victim of an assault could not determine which of two twins had battered him.  The court came to the same conclusion that the law student would in the hypothetical—the victim was unable to meet the burden of proof so neither twin was liable for the injuries.

Aside from indistinguishable twin scenario, there is another context in which twins are frequently the subject of law school hypotheticals: Situations where only one of two conjoined twins commits a crime.  Would the inseparable innocent twin also be punished?  Apparently law professors and students aren’t the only ones to puzzle over this question.  In 2009, Slate readers selected it as the question of the year.  The article explores historical examples of conjoined twins tried for crimes and possible methods of punishing the perpetrating twin without harming the innocent one.  In the end, however, how a court would handle such a situation remains to be seen.

For those interested in learning how to meet one’s burden of proof, the Alameda County Law Library has numerous popular titles on evidence, including Witkin’s and Wigmore’s treatises and Jefferson’s benchbook.  In addition, the Library has AmJur Proof of Facts, the standard resource for information on how to establish elements necessary to prove a case.  To the great disappointment of law professors and students, none of these resources discuss issues dealing with indistinguishable identical twins or conjoined twins.

The skinny on jeans defense

On April 30, 2010, an Australian jury acquitted Nicholas Gonzales of rape on what has come to be known as the “skinny jeans defense.”  The defense convinced the jury that it would be “difficult for skinny jeans to be taken off by someone else unless the wearer’s assisting, collaborating, consenting.”  This Australian case is just the latest to test the skinny jeans defense.  The defense had been successful previously in a 1999 Italian case and a 2008 Korean case

A natural question is whether it would be possible for a jury to reach such a conclusion in California.  The answer largely depends upon whether evidence of the accuser’s dress is barred by California’s Rape Shield Law.  Rape Shield Laws are statutes intended to protect an accuser by limiting the admissibility of evidence concerning her past sexual history.  California’s statute, codified in Evidence Code section 1103, is more expansive than some states.  In addition to excluding evidence concerning the accuser’s past behavior, it prohibits admitting evidence of the victim’s dress in order to show consent.  Subdivision (c)(2), states in part:

[E]vidence of the manner in which the victim was dressed at the time of the commission of the offense shall not be admissible when offered by either party on the issue of consent in any prosecution . . . unless the evidence is determined by the court to be relevant and admissible in the interests of justice

A cursory reading would suggest that an accuser’s skinny jeans would be inadmissible with regard to the question of her consent.  A closer reading, however, suggests that a court might admit the evidence to show something other than consent.  For example, in the high profile Kobe Bryant rape trial, though the victim’s sexual past was ostensibly protected by a similar rape shield law, the protection was bypassed in order to show a possible alternate source of injuries.  With regard to a skinny jeans defense, the code might permit evidence of the accuser’s clothing not to show the accuser is morally loose (unlike her pants), but for purposes such as showing physical impossibility.  Even so, the judge still has the discretion to make a relevance determination before the evidence can be presented to the jury.  So while the California’s Rape Shield Law might let evidence of the accuser’s skinny jeans fly, a judge still has the option to keep it buttoned up.