MySpace evidence was inadmissible hearsay

Musgrove v. Helms, 2011 WL 1225672 (Ohio App. 2 Dist. April 1, 2011)

An Ohio domestic relations court ordered an ex-wife to pay her ex-husband child support. Based on evidence that the ex-wife’s income had increased, the court increased the amount of support she had to pay. One of the pieces of evidence the court relied on was information from the ex-wife’s MySpace page where she had stated her income was “less than $30,000.” (This comported with other evidence suggesting her income was around $29,000).

The ex-wife sought review of the order increasing child support with the appellate court. On appeal, the court found the MySpace page to be inadmissible hearsay, and vacated that portion of the order.

The finding turned on a nuance of the rules of evidence pertaining to hearsay. Generally, hearsay is inadmissible as evidence, but there are exceptions. One of the exceptions is statements made by the declarant that are against her interest. The court found that although the MySpace information was used in a way adverse to the ex-wife’s interest (i.e., to increase her support obligation), as a declaration it was not adverse to her interest because it was not an assertion of fact which was by its nature contrary to her interest.

So this case is a reminder that notwithstanding any increased interest in the discoverability of social media evidence, the rules in place may serve to render the information discovered ultimately useless later in the litigation.


  1. This is why you should never share too much personal information on the web. Thanks for the article, I enjoyed reading it.

  2. It looks like the court got this one wrong. If properly authenticated, the MySpace page should have been admitted as non-hearsay, under Evidence Rule 801(D)(2), as an admission of a party opponent. Oddly, there is no mention of Rule 801 in the opinion.

  3. Your point is well taken. Just because something is discoverable does not mean it is ultimately admissible. However, I agree with the comments above. There may have been ways to make the information in this case admissible. Therefore, people should still be wary of what they post on the web.

  4. I agree that just because you can find documents being discoverable that they are not yet admissible just like the records for when you die like the Ohio death records.

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