District Court Judge Rules Evidence of Suicide Admissible in Lori Drew MySpace Case
By Leocadie Welling – Edited by Nicola Carah
United States v. Drew, 08-CR-582
On November 14, 2008, Judge George Wu of the District Court for the Central District of California indicated at hearing that he would admit evidence of 13-year-old Megan Meier’s suicide at the upcoming trial of Lori Drew. Judge Wu further indicated that although he was admitting the evidence, he would issue a jury instruction specifying that the case against Drew is not about Meier’s suicide and that Drew is not charged with causing the suicide.
Drew is charged with conspiracy and with three counts of violating the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, after creating a fake MySpace account, purporting to be a teenaged boy. Drew, along with others, contacted Meier through MySpace, befriending the girl and eventually entering into a “relationship” online. Drew subsequently broke the relationship off and Meier committed suicide shortly thereafter. On Monday, November 10, Judge Wu indicated in pretrial conference that he was inclined to exclude evidence of Meier’s suicide on the grounds of lack of relevance and potentially prejudicial effects on the jury. On Friday November 14, after hearing counsels’ arguments, Judge Wu ruled that the evidence was admissible. No order has yet been issued explaining Judge Wu’s reasoning.
The Citizen Media Law Project hosts court documents. For background on the case, The New York Times featured a summary of the events leading up to Meier’s death in November 2007 and the WSJ Law Blog has posted several items on the subsequent case.
The AP covers Judge Wu’s decision to admit evidence of Meier’s suicide, reporting that he said he was convinced many jurors would already be aware of the suicide from news reports or a recent Law & Order episode that contained similar facts.
GW Law professor Orin Kerr, wrote in May in favor of granting Drew’s motion to dismiss the case. He argues that the that the CFAA’s criminal prohibition against accessing a computer “without authorization” should not be interpreted as extending to instances of individual violations of a website’s Terms of Service. Professor Kerr has since joined Drew’s defense team.
Concurring Opinions wrote a piece in May largely agreeing with Kerr’s conclusion but slightly diverging in its reasoning, and wrote recently arguing that the case should not be going to trial. Simple Justice also covers the recent ruling to admit the evidence.
The prosecution’s argument uses Drew’s violation of MySpace’s Terms of Service to allege that she accessed protected computers without authorization to further a tortious act, in this case, intentional infliction of emotional distress, in violation of the CFAA. MySpace’s Terms of Service require members to provide accurate information in their profiles and prohibit harassment and abusive behavior. The government argues that by violating these Terms of Service, Drew was accessing MySpace’s computers without authorization when she logged onto her account.
Drew’s defense team argued in their motion to exclude that the evidence of Meier’s suicide should be found inadmissible because it is (1) irrelevant and (2) unfairly prejudicial. They argue that the suicide does not go to any element of the crimes charged under the CFAA, and that the government is seeking to admit the evidence with the intent of prejudicing the jury and to punish Drew for Meier’s death.
The government argued that the court should deny Drew’s motion because (1) Meier’s suicide is highly probative on the issue of Drew’s intent and provides context for Drew’s conduct after Meier’s death and (2) the substantial probative value is not outweighed by the limited prejudicial effect. The government contended that Meier’s suicide helps prove Drew intended to inflict emotional distress on the girl, and demonstrates that Drew’s use of MySpace was in furtherance of the tort. The government contends that the possible prejudicial effect of the evidence could be mitigated by voir dire and appropriate jury instructions.