In a criminal sexual assault case, Defense Counsel attempted to introduce sexually explicit instant message (IM) conversations between a girl who was a minor and several adult males who were not charges with any offense or were related to the criminal case in any manner. Defense Counsel intention was to prove that the alleged victim, the girl, was fabricating her story, she had specific knowledge of sex acts from another event or events, and the IM’s reflected her sexual activity. (Obviously, for the jury to evaluate her credibility when they were to deliberate.) A forensic analysis of the girl’s computer revealed sexually explicit IMs between her and an adult male. A trial judge found that the IMs constituted “sexual conduct,” as defined by N.J.S.A. 2C:14-7f (New Jersey’s Rape Shield Law), and their prejudicial effect outweighed their probative value. However, based on the significant number of IM’s and the sexually explicit content the trial judge allowed the defendant to mention them in order to show that the victim may have fabricated her story “in order to deflect criticism or discipline for having engaged in such behavior (the sexually explicit IMs that is, not the allegations against JAC the defendant).”
On appeal, the Appellate Division ruled that the contents of the IMs were not relevant to the offense charged since they did not refer to or involve the defendant or bear any relation to a motive to fabricate. Nevertheless, the Appellate Division held that the existence of the IMs was relevant to show that the victim had a motive to fabricate the allegations. Although explicit IMs cannot be introduced to prove the sexual disposition of an alleged victim, this groundbreaking decision makes it possible to introduce them in order to establish motive for an alleged victim to lie in order to avoid punishment for this behavior from the mom or dad or paramour who is in the house in charge of discipline. In addition, the court;s same reasoning can be applied to cross examination issues an alleged victim’s lack of credibility without running afoul of New Jersey’s rape shield statute, N.J.S.A. 2C:14-7. The Appellate Division’s decision can be found here.
UPDATE – New Jersey Supreme Court Review:
The Appellate Division’s decision has been appealed and the New Jersey Supreme Court recently heard oral arguments in the case. The Court plans to rule solely on the limited issue of whether the contents of IMs sent by a minor victim to adult males are admissible. If the Court determines that they are, explicit IMs could become a powerful tool to defend against wrongful convictions and protect the constitutional rights of criminal defendants.
The key issue in this case will be the use of and existence of any IMs from one teen to another! Counsel must investigate these issues because the content will surely come into play in one way or another. IMs from one friend to another, and for that matter, texts, emails, web pages, tweets, that are memorialized FOREVER, are nothing more than a conversation between friends that has been preserved! While Teens used to talk on the phone; now with the number of IMs, text, emails, and tweets, reaching millions and millions per day, more often than not serious sensitive teen communications will probably be saved on a server somewhere that can be retrieved from trial in these case. More importantly, the content of those emails, text, IMs, tweets, and the like will make or break your defense at trial.