The Massachusetts Appeals Court today overturned a man's conviction for disobeying an order not to contact a former girlfriend, saying prosecutors failed to prove that he actually sent her an Instagram message that had his account name linked on it.
In 2018, the Grafton man was convicted of violating a domestic-abuse prevention order for allegedly sending a woman he'd dated for five months a message on Instagram that read, in its entirety: "Yoooo." The woman reported the message to police and the man was hauled into criminal court, convicted in a trial before a judge and given a sentence of two months of probation.
In its ruling overturning the conviction, however, the court said prosecutors did not provide any proof that the man was actually the one who logged into his account and sent the message.
Here, even assuming without deciding that the Instagram message was properly authenticated, the Commonwealth failed to meet its higher burden of proving beyond a reasonable doubt that the defendant was the person who wrote or sent the message to the victim. Although the evidence was sufficient to show that the Instagram account was the defendant's and that he could access it, there was no circumstantial evidence establishing authorship. Nothing about the content or tone of the message, "Yoooo," corroborated that the defendant wrote it. The message did not refer to any prior conversation between the parties or contain other distinctive characteristics. Cf. Oppenheim, 86 Mass. App. Ct. at 368 (evidence sufficient to authenticate that defendant wrote instant message, where tone was familiar to recipient, and message referred to earlier discussions with recipient and personal details about defendant). In fact, contrary to the Commonwealth's assertion, the evidence did not even show that the defendant previously sent the victim messages through Instagram.
The court added:
Although the Commonwealth cites the fact that the defendant needed a passcode to open his cell phone, this does not tip the scale in favor of sufficiency because the Commonwealth offered no evidence that a cell phone is the only, or even primary, means of accessing an Instagram account. In fact, the officer testified that Instagram accounts can be accessed from multiple devices, such as tablets and desktop computers. The Commonwealth also put in no evidence to show (nor does it argue on appeal) that a message appearing on an Instagram cell phone application is akin to a text message on a cell phone or to an e-mail downloaded to a computer hard drive. Cf. Purdy, 459 Mass. at 450-451. Thus, that the message appeared when the defendant opened the Instagram application is not proof that he used his cell phone to send it. The Commonwealth conceded as much at oral argument.
The court also pointed to the weakness of the prosecution's case in a footnote:
On direct examination the Commonwealth asked the victim, "And before you had your restraining order, you had previously talked to the defendant on Instagram messenger . . . using this name?" While the victim answered, "Yes," no evidence was offered to explain the meaning of "Instagram messenger." It is unclear whether the Commonwealth was referring to Instagram generally or a feature or application; if the latter, there was no evidence regarding how such a feature or application works or even whether something called "Instagram messenger" exists. Moreover, in response to the follow-up question -- "[H]ow often would you say you communicated with the defendant via Instagram?" -- the victim stated only, "We liked each other's posts." Then, on cross-examination, the victim confirmed that her Instagram communication with the defendant was limited to "liking posts and comments."