In a case involving claims of self-defense, the Trial Court excluded photos of the victim from MySpace holding a gun and wearing gang colors. Three prosecution witnesses claimed they had never seen the victim with a gun before. The Trial Court excluded the MySpace photos on the grounds the three photos were prejudicial.
The Court of Appeals reversed. The photos should have been admitted as impeachment evidence to contradict the testimony of the prosecution witnesses. United States v. Garcia, 2013 U.S. App. LEXIS 16880, 18-21 (9th Cir. Wash. Aug. 13, 2013).
Bow Tie Thoughts
The Rules of Evidence and whether social media photos can be used for impeachment is tricky. Attorneys quickly run into issues of relevance, prior bad acts, and unfair prejudice. A jury might find one way in a case simply because they do not like a photo.
Witness credibility and impeachment raise different issues. The Defendant has a right to impeach a witness’ statement. And when it comes to impeachment, a picture is worth a thousand words.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.