The article’s focus on the evidentiary ruling is puzzling.

I’m not at all sure why the author of the blog article chose the case he did to discuss the issue he appeared to want to discuss.  Frankly, I found the dissent — on an entirely different issue — to be much more interesting.   But the fact that the opinion is an unpublished opinion makes it pretty much valueless in California anyway.  As with all unpublished cases, California’s Rules of Court make the case uncitable; it does not count as precedent.  And the argument on this issue was unremarkable, to say the least.

The only thing I can figure is that there aren’t any published California criminal cases involving the use of social networking evidence and the author wanted to reference such a case, rather than any of my articles on the topic.

I myself would not bother to write about this unpublished case if it were not for the fact that the author of the article, who is licensed as an attorney in the State of California, but who may not actually practice criminal law decided to do so, made a couple of mistakes and I thought I would both fix those and springboard off his post to talk about how social networking does get used in actual criminal cases in California.

(Side note: I do not know “Joshua Gilliland, Esq.,” who “is the blogger for ‘Bow Tie Law.’”  I form my opinion that he may not actually practice criminal law on a few relatively minor details.  First, the State Bar website shows that he is a member, but he lists his address as being with “D4 Discovery.”  The “About” page for his website mentions nothing about actual lawyering, but only discusses his creating and teaching CLE courses, especially regarding e-discovery.  And the article itself contains a few — again, fairly minor — errors that I don’t think a practicing attorney would make.  My pointing this out is not intended to disparage Mr. Gilliland.  Not everyone with a law license wants to, or should be required to, practice law.  Even if my assessment is correct, if Mr. Gilliland does a good job teaching e-discovery and doesn’t do criminal trials, I see nothing at all wrong with that.  Besides, much of what he said, he got right.)

One thing Gilliland got right were the facts, so I won’t rehash it all here.  Basically, the defendant was tried and convicted for murder after a confrontation with rival gang members in which a gang member was shot.  Apparently, one of his defenses was that the person shot was the aggressor and part of the evidence he wanted to have admitted to support his theory came from the MySpace page of the dead gang member’s sister (who was also present for the incident and testified about the shooting).

Gilliland seems to make a big deal of the fact the opinion is not clear if the evidence — a videotape — was a videotape of the MySpace page (i.e., someone videotaping the page while viewing it), or was a video that was embedded in, or part of, the page itself.  I don’t know why that matters.  He afterward mentions that the prosecution objected on “foundational” and “relevancy” grounds.  His comments about this ambiguity made me wonder if that’s what he thought created a foundational issue.  The court, however, was not unclear about that: the foundational objection was because the prosecutor claimed you could not tell who was in the video just by viewing it.

Gilliland, however, completely missed the point when he stated,

The Trial Court excluded the MySpace evidence pursuant to California Rule of Evidence Code section 352 (no evidence is admissible except relevant evidence).  Williams, at *24.

Gilliland’s mistake is that Evidence Code section 352 deals with evidence that typically is relevant, but where the probative value is outweighed by concerns of undue prejudice, confusion or consumption of time.  It is Evidence Code section 350 that states no evidence is admissible except relevant evidence.

But this mistake — one of the things that made me think Gilliland doesn’t do many trials — probably occurred because of another ambiguity in the opinion.  (I have argued elsewhere that sloppy opinion-writing is one of the things that make unpublished opinions problematic.)  The opinion itself states:

[T]he court ruled that it would be excluded under Evidence Code section 352.  The court ruled that if the page had shown an actual crime of violence, the evidence would have been admitted, but that “this is playacting.  It is no different than Marlon Brando shooting the Godfather or something.  Would that show a propensity to commit violence?  No.  So I am not going to allow it.  I think it is irrelevant.”

The appellate opinion then went on to argue that the evidence was repetitive, as there was already significant other (presumably relevant) evidence making the same point.  In other words, it was a 352 issue.  And besides, the court noted, the defendant-appellant’s claim that his constitutional due process rights were violated by not admitting the evidence was wrong: the videotape “clearly involved a minor point” and exclusion of this minor piece of evidence did not rise to the level of a constitutional violation.

So much for those relatively minor quibbles.  As you can see, the issue of “e-discovery” had almost no role to play here; nor was the attempted use of MySpace evidence all that significant.

As I noted, however, MySpace evidence does have some importance in gang cases, particularly when it comes in through gang experts cops.  And speaking of gang cops, I particularly liked the dissenting comment of Justice Mosk in the case:

It is a stretch to assert that defendant Harvey somehow committed or aided and abetted a violation of Penal Code section 415 — a misdemeanor — and that a killing is a natural and probable consequence of that target offense.  Are the words, “where are you from?” “offensive words in a public place which are inherently likely to provoke an immediate violent reaction”? (Pen.Code § 415, subd. (3).)  Here, it was Williams that shot first.  There was no violent reaction from the words.  It was only after the victim taunted Williams that the latter started shooting.  To leap from this series of events to the killing being a natural and probable consequence of the “where are you from?” statement does not seem to comport with the purpose of the doctrine.  If the expert testimony can supply the evidence necessary for the target offense, the natural and probable consequence, and the gang enhancement, we are getting to the point where the expert is providing all the evidence to support the guilty verdicts.

It may well be that Harvey is an aider and abettor, but I question the use of the natural and probable consequence instruction.  I would reverse Harvey’s conviction on the basis of the instruction.

The italics there are mine.

I’m confused about Justice Mosk’s point, though.  Technically, he is correct that we’re only “getting to the point where the expert is providing all the evidence to support the guilty verdicts.”  But under the law in California, gang experts cops can provide all or nearly-all the evidence to support guilty verdicts relating to gang charges or enhancements.  (Pen. Code § 186.22(a), (b).)  In those cases, they not only provide the evidence, they actually tell the jury that the defendant is guilty.  Under California law, it is perfectly acceptable for the expert cop to say, “The defendant is guilty of this crime.”  Arguments that this is something for the jury to decide and not for an armed officer in full battle gear to decide for them repeatedly fall on deaf ears.

To be fair — something you don’t necessarily get from the prosecution or judge at trial when these points are argued — the appellate courts have insisted on something more than a mere opinion of the ultimate issue.  For example, in cases where the opinion is based merely on the fact that the accused person is a gang member and the gang commits crimes similar to the one the accused person has committed, appellate courts have lately not found that to be sufficient evidence.  However, in many of these cases, the problem is that the gang expert cop simply did not talk long enough.  If he had spit out some litany of “facts” — which can be based on hearsay — that would provide a more solid basis than just “he’s one of them, they do this,” the courts have upheld convictions based only on evidence provided by the expert cop.

Now I also promised above to discuss how MySpace — or social networking evidence generally — is commonly used in gang cases.  I’ve already noted that the refusal of the court to admit the videotape in the unpublished Williams case was not an indication of any problems with the way it was collected, as Gilliland appears to think.  The problem was some mix of relevancy and the 352 appraisal.

I also think if the prosecution, instead of the defense, had sought to have the evidence admitted, it would have been.  This is not just because the courts typically exhibit a pro-prosecution bias on evidentiary matters.  (The San Jose Mercury News has a story on its own review of five-years of criminal jury trial appeals which “establish a pattern of judicial conduct that favored prosecutors,” but I can’t link it because it requires registration, which I refuse to do.)  It’s also because prosecutor’s often advance social-networking evidence to show that someone is a gang member.  Pictures on MySpace accounts showing accused persons or witnesses “throwing gang signs,” or wearing “gang” uniforms clothing and/or “associating” — either in pictures, or by writing on MySpace “walls” — with people the gang expert cop will identify as gang members are all potential sources of evidence as far as the prosecution is concerned.  The courts usually agree.  Forget the fact that, to paraphrase Freud, “sometimes a red shirt is just a red shirt.”

When it comes to evidence that someone is a gang member, or to prove something about the gang (like “how violent it is”) you can never have too much.  (I’m currently handling an appeal on a case where something like 10,000 pages of discovery was provided regarding the gang my client was allegedly trying to promote or benefit by getting into a fist fight.  Several — not just one — gang experts cops, including a Royal Canadian Mounted Police Officer, testified to almost everything in those pages, too.  So you see how much 352 means when it’s the prosecutor proffering the evidence.)  And, trust me, you don’t need much of a “foundation.”  Gang experts cops are allowed to rely on hearsay, so “someone told me it was the defendant in the video” probably provides all the foundation needed.

All in all, Gilliland is at least correct about this one important point: social networking evidence can be important in court.

Oh, my title?  As they say, “Meh….”  It comes from a quote attributed in Williams to a co-defendant.  He was apparently inviting the rival gang members to follow him to an area where no one would be able to see what was about to go down.  I liked it for the title because when it comes to social networking, it’s getting harder to find such places.

Don’t let me mislead you: you won’t know everything you need to know to be a gang expert.  That takes years of training in sociology, anthropology and/or psychology, plus a lot of field work.  There are actually very few gang experts around.  But you will know everything you need to know to testify, under oath, in court, about gangs and why the jury should convict any gang member about whom you testify.

One more caveat: you won’t actually be able to testify in court about these things as a “court-approved” expert.  It’s kind of like the Wizard said to the scarecrow in The Wizard of Oz.

Why, anybody can have a brain. That’s a very mediocre commodity. Every pusillanimous creature that crawls on the Earth or slinks through slimy seas has a brain. Back where I come from, we have universities, seats of great learning, where men go to become great thinkers. And when they come out, they think deep thoughts and with no more brains than you have. But they have one thing you haven’t got: a diploma.

With the “knowledge” I’m about to impart to you, you’ll know all you need to do what gang cops do.  But they have one thing you haven’t got: a badge.

Rule #1: You are testifying about an evil, vile, lowlife gang member.  They’re all the same.  Whatever you say, your aim is to make sure the jury never sees anything different.  (Unless the prosecutor has deemed the gang member the victim, in which case your job is to argue that he’s still a human being and deserves justice.  Just remember to testilie the opposite of what you normally would and you’ll be fine.)

If a slimy defense attorney tries to humanize her client, you must do what you can to resist.  Any ordinary emotions, motivations, or other reasons for the gang member’s behavior must be explained away.  Better yet, see if you can twist normal emotions into something horrible.

For example — this is one of the biggest things you must learn to deal with — human beings generally want to be treated like human beings.  If someone mistreats a human, most humans will react with some kind of hostility.  If you want to really see how this works, the next time a police officer asks you a question, say, “What business is that of yours?”  Then come report back to us on his reaction…if you can.

But remember, because they are not human beings, gang members are different.  For a gang member, it’s not about being treated in the normal way human beings expect.  Nooooo…it’s all about “RESPECT.”  And this is why jurors need gang “experts” to explain things to them.  Because we’re not just talking about Aretha Franklin’s “R-E-S-P-E-C-T” here.  (However, Aretha is African-American, so you should say she’s “probably” a gang member if you are asked.)

At any rate, gang members don’t want “just a little bit.”  They don’t just want to be treated right.  It’s not like it is with every other person on the face of this planet.  With gang members, they want to beat the crap out of everyone to “earn” some respect.  Make sure the jurors know that “everyone” means them (the jurors), too.

What’s important is to make sure the jury knows that normal human emotions don’t apply when evaluating gang member behavior.

Rule #2: A gang member actually doesn’t do anything just for himself.  Everything — and I mean everything — the gang member does is “for the benefit of his criminal street gang.”

So if it looks like a gang member was jealous or immature and got into a fight with someone because he thought they were flirting with his girlfriend or because they looked at mad-dogged him, the jury must understand that isn’t really the reason.  That looks too much like how ordinary jealous or immature human beings react under those circumstances.  That involves normal human emotions.  The reasons you want the jury to hear are all aimed at showing he was trying to benefit a criminal street gang, or that he was earning respect for the gang.

Did he kick a dog because it yelped and startled him when he accidentally stepped on its tail?  No! Weren’t you listening?!  That might be a normal immature human reaction.  This dude kicked the dog to earn respect and to benefit a criminal street gang.  If he let people think that he wouldn’t enforce the rules on respect in this instance, the next thing you know, he’d be a laughingstock and gang members would come from as far away as New Zealand just to beat him down and laugh at him.

Rule #3: This is similar to Rule #2, but more personal and comprehensive.  You must get the jury to subsume the personality, activities, thoughts, beliefs and anything else about the gang member into the gang itself.  Remember!  Gang members are not human beings.  They are part of a collective, like the Borg.  Only worse.  If one of them is caught carrying a concealed weapon, your job is to teach the jury how every gang member within a 250-mile radius knew that gang member had it and actually personally possessed that gun, also.  This way, all the jury has to decide is that Gang Member A possessed a gun to convict Gang Member B for burglarizing a house.  Yes, yes, yes; that doesn’t make sense.  Look, do you want to be a gang cop, or not?

Now if you do your job right, this works even though Gang Member B never heard of Gang Member A.  (If you do your job wrong, you will be assigned to desk duty in Firebaugh.  (Your first job will be to find yourself a desk.))

This rule is particularly important because when it comes time to discuss things like the truly nasty (and you will make sure they’re nasty and explicated to the jurors in gory detail) “primary activities” of the gang, the jury will recognize this is actually supposed to be evidence about the character of the gang member sitting at the defense table in your case, now.

Rule #4: When the prosecutor asks you a question, he will probably deliberately lead you.  (This is permissible when questioning “expert” witnesses, at least in California.  Because we believe experts are so knowledgeable about what they do that they would not know how to answer a question unless the question itself contained the answer the jury needs to hear.  That’s why we call them “experts.”)

Pay attention and be sure to follow the prosecutor’s lead.  Remember that your answers should be tailored for maximum prejudice.  The best way to do this will be to simply parrot back the words of the prosecutor.  However, if the prosecutor screws up, you may have to enhance or build on the leading question.

For example, gang members do not “look at” or “stare at” people; they “mad-dog” them.  This will give you the ability to follow up with an explanation of “mad-dogging” and to tell the jury that it’s a deliberate provocation, which shows the gang member is guilty of whatever you say he’s guilty of.  If the jury just thinks the gang member was looking at someone, they might not understand that the other person was justified in attacking the gang member and that the gang member was not justified in fighting back.  They might think the other guy should be on trial instead.  Thus, they might acquit the gang member of an assault or attempted murder.

Rule #5: Gang members don’t have nicknames.  They have monikers.  This shows how evil they are.  For example, I knew a white guy once we called “LK,” short for “Lady Killer.”  (He was a big flirt.)  This was a nickname.  One way you can tell is that I mentioned he was a white guy.  (With certain limited exceptions that are beyond the scope of this article, white guys can’t be gang members because their gangs aren’t formed specifically to commit crimes, whereas all non-white gangs are obviously formed specifically to commit crimes.) If the dude was not white, there’s a good chance that “Lady Killer” would be a moniker and you would tell the jury that “Lady Killer” shows that he’s a violence-prone misogynist whose favorite hobby includes murdering innocent women.  Like the ones on the jury.

Rule #6: Gang members mostly sit around doing nothing, drinking, partying and so on.  However, you must never admit these are their primary activities.  Nope.  Their primary activities include murder, robbery, assaults and drive-by shootings.  If you have a good memory and want to be creative, you can try to learn a couple more crimes from Penal Code section 186.22(e).  But don’t.  The other crimes might not prejudice the jurors as much.

And prejudice is the name of the game here.  Gang X doesn’t just murder lots of people.  You want to talk about how the gang member walked into the house, found a man in a full-body cast recuperating on the couch in the living room and splattered his brains all across the drapes.  Then he turned and shot an unarmed woman right through the eyeball, while her twin 5-year-old daughters screamed and ran from the room.  The little girls, being naïve and innocent little girls, thought they could hide by ducking their heads under the pillows on mom’s bed.  The pillows helped muffle the sound when the gang member pushed the end of the pistol into it and pulled the trigger.  (This is exactly the way one FBI agent told a jury about a so-called “predicate crime” allegedly committed by a gang member my client had never met, because they lived in completely different areas of the state and were members of what the agent described as separate “sets” of what the agent said was the same gang.  If anything, I’ve made it less gory.)

Oh, and if some stupid defense attorney tries the trick of asking you why, if murder is the primary activity of the 4,000-plus-members (or maybe it’s 5,000 or 6,000) of the Bulldogs gang, there aren’t more murders?  Use that opportunity to laud the great work of your fellow officers.

I know, I know.  That doesn’t really explain how there aren’t as many murders as you’d expect with thousands of people out there each of whose primary activity is murder, but nothing else you say makes sense either.  Trust me, the jury won’t think about that.  If jurors actually did think about these things themselves, you’d never be on the stand in the first place.

Rule #7: Finally — and this is really important, especially if the crimes of the gang you’re hanging on this defendant weren’t gory enough (see Rules #3 and #6 above) — don’t get bored and start to drift off after you’ve done all the above.  Listen carefully for the prosecutor’s wrap-up on your testimony.  It will go something like this:  “In your expert opinion, were these crimes committed for the benefit of a criminal street gang?”  There’s only one answer.  And it’s not “yes.”  Well, not just “yes.”  The correct answer is: “Yes.  In my expert opinion, these crimes were committed for the benefit of a criminal street gang.“  Because unless you tell the jury this, they might try to figure it out on their own.  And they might not go along with the prosecutor if they start to actually look at the evidence instead of just taking your word for it.  So remind them that you are the expert and you think the defendant is guilty.

Okay.  Now you’re ready to play.

Or, rather, you would be.  If you only had a badge.