Evidence of Internet Searches About Lawful Abortion Held Inadmissible to Prove Intent to Later Kill or Harm Newborn Baby

Yesterday, in Akers v. State, __ Md. __, 2025 WL 543463, at *1 (Feb. 19, 2025), the Supreme Court of Maryland wrote:

A woman’s right to terminate a pregnancy is one of the most divisive issues in this country. Although abortion is a protected right in Maryland and a common event in many women’s lives, it is highly stigmatized. In this case, we must consider whether evidence of a criminal defendant’s internet searches on abortion in the early months of her pregnancy was relevant to show her intent to kill or harm her newborn several months later at birth, or, if marginally relevant, unfairly prejudicial.

For background on the lower court’s decision, see Admissibility of Internet Searches About Terminating Pregnancy – E-Discovery LLC (Jun. 5, 2024).

Ms. Akers contended that the baby was stillborn. However, she was convicted of child abuse and second-degree murder.

In the intermediate appellate court, there were three key issues: 1) admissibility of a forensic test to show the baby was born alive; 2) admissibility of internet searches for abortion information, at a stage when abortion was legal, to show intent to kill the baby after birth; and, 3) admissibility of foregoing prenatal care to show intent to harm or kill the baby after birth.

The intermediate appellate court affirmed the conviction in an unreported decision that was expressly confined to its tragic facts.  The Supreme Court of Maryland reversed and remanded for trial.

This blog addresses the issue of admissibility of electronically stored information – – here, internet searches – – under the Maryland evidentiary rules.  Under Akers, the two presented issues were relevance and whether any probative value is sufficiently outweighed by the danger of unfair prejudice.  The Supreme Court extensively discussed and applied the two characteristics of relevance analysis. Authentication was not an issue in Akers.

The tragic factual predicate began, in the Supreme Court’s words, as follows:

The State of Maryland charged Petitioner, Moira E. Akers, in the Circuit Court for Howard County with murder and child abuse resulting in the death of her newborn. The charges arose in connection with Ms. Akers’ at-home delivery of the baby without her husband’s knowledge that she was pregnant at the time. Ms. Akers was the sole witness to the delivery. Ms. Akers maintains that the baby was stillborn, and the State contends that the baby died of asphyxiation at Ms. Akers’ hands.

The Court explained the electronically stored information that was admitted into evidence:

Upon discovering the infant’s body in the closet, the police immediately treated the Akers’ house as a crime scene….  Police took Ms. Akers’ cellphone and, upon inspection of the search history, discovered the self-help termination searches, which had occurred between six and eight months before the delivery.

The Akers Court wrote that the cell phone extraction reports showed a series of searches “during the time period in which Ms. Akers could have lawfully terminated her pregnancy:

• March 4, 2018: ‘rue tea for abortion’
• March 4, 2018: ‘does rue extract cause you to miscarry’
• March 4, 2018: ‘over the counter pills that cause miscarriage’
• March 8, 2018: ‘miscarriage at 7 weeks’
• March 8, 2018: ‘miscarriage at 7 weeks do i need a d&c’
• May 4, 2018: ‘how to treat ectopic pregnancy naturally’
• May 4, 2018: ‘how to end a ectopic pregnancy’”

The Akers Court wrote that: “Additional searches included ‘planned parenthood,’ ‘scheduling an abortion,’ and a search for ‘Misoprostol in Midtrimester Termination of Pregnancy: Oral and Vaginal in of’ on eBay. Ms. Akers also visited a website titled ‘woman resort to over-the-counter remedies to end pregnancy’ on March 14, 2018.”  The baby was delivered on November 1, 2018. Id. at *2.

In addition to the internet searches, the prosecutor also argued that Ms. Akers’ delay in seeking prenatal care was probative of intent. Because that is not an issue of electronically stored information, this blog does not address it.[1]

The internet search evidence was challenged in the trial court:

Before trial, Ms. Akers filed a motion in limine asking the circuit court to exclude evidence about the termination searches and her lack of prenatal care as irrelevant and unfairly prejudicial. Ms. Akers pointed out that Maryland law prohibits the State from interfering with a woman’s decision to abort a non-viable fetus. Ms. Akers also argued that the State could not prove guilt by introducing evidence that a person was contemplating exercising a constitutionally protected right. Regarding forgoing obstetric prenatal care, Ms. Akers argued that there is no legal obligation to seek prenatal care and that a pregnant woman cannot be prosecuted for failure to act with regard to her own fetus.

The prosecutor argued:

We must prove, Your Honor, that the Defendant intended to kill her baby. And to prove the child abuse, we must prove that the Defendant caused serious injury or death and that it was intentional, either to commit the acts of abuse or failure to act. The fact that she was seeking to end her pregnancy is most highly relevant to proving her intent to kill the baby once it was born, and her intentional failure to obtain care for her child after the child was born.

Because Ms. Akers denied pregnancy to her husband and medical personnel, the prosecutor also argued that the searches were relevant to credibility.

The trial court denied Ms. Akers’ motion in limine, stating that “both the researching the abortion issue and the lack of prenatal care, once the Defendant understands that she is expecting, are relevant to the issue of intent that the State’s required to prove for their suggestion that it was a killing.” Also, the trial judge “[did] not find that its prejudicial effect outweighs its probative value.”

The Supreme Court wrote: “After admitting the [two cell phone] extraction reports [containing a 15-page list of web and browser history] into evidence over defense counsel’s objection, the trial court allowed Detective Lapier to summarize[2] the searches for the jury.” The decision states that:  “Detective Lapier read into the record the search terms that were identified on the exhibits.”

In closing, the prosecutor argued:

Perfect, beautiful Baby Boy Akers was born and died on November 1st, 2018. He lived only a few moments, taking a few breaths, before his mother, the defendant, snuffed out his life. Why? Because she didn’t want another child. She wanted to terminate this pregnancy and when she chose not to, she took matters into her own hands upon his birth that afternoon[,] at around 3:30 on November 1st of 2018…. She had a plan to terminate the baby.

The issue on review was:

This Court granted certiorari to determine whether evidence of Ms. Akers’ internet searches about terminating a pregnancy during a period in which she would be able to legally obtain an abortion in this State and her decision to forgo prenatal care are irrelevant to an intent to kill or harm a newborn at birth, or, if marginally relevant, unfairly prejudicial.

The holding was:

We hold that the internet searches are irrelevant and that the trial court erred as a matter of law in admitting them. We similarly hold that Ms. Akers’ bare decision to forgo prenatal care was not probative of motive or an intent to kill or harm a live child….  In light of our holding on the inadmissibility of the abortion searches, we reverse the judgment of the Appellate Court and remand this case to the circuit court for a new trial.

The Supreme Court of Maryland noted two issues: 1) relevance; and, 2) whether the probative value was outweighed by the danger of unfair prejudice or other factors under Md. Rule 5-403.  Id. at *9-10.  It decided the appeal regarding internet searches on the first.  In doing so, it provided an extensive discussion of the two characteristics of relevant evidence. Id. at 10-11.

As to relevance:

Ms. Akers contends that evidence of her internet searches about terminating her pregnancy between six and nearly eight months before delivery have no logical connection to an intent to kill or harm a newborn at birth. Nor, according to Ms. Akers, does her contemplation of a protected right to terminate a pregnancy during the period in question make the later existence of a specific intent to kill the newborn or an adoption plan more or less probable. Ms. Akers asserts that a woman’s consideration of an abortion is neither contemplation of murder at birth nor impeachment of her desire to put a baby up for adoption once it is born. Additionally, Ms. Akers argues that, even if the abortion searches were relevant, the prejudicial effect of this highly inflammatory evidence far exceeded any probative value.

The Court’s extensive and important discussion of reproductive rights is not an electronic discovery issue.  For present purposes — admissibility of electronically stored evidence – – the Akers Court wrote:

Ms. Akers had a constitutionally and statutorily protected right to search for information on how to terminate her pregnancy, including searching for options on how to terminate the pregnancy through self-managed care. The record clearly reflects that the prosecutor intended to, and did, in fact, link Ms. Akers’ exercise of her right to contemplate the termination of her pregnancy with an intent to kill a newborn upon the delivery many months later.

The Court held as follows:

We hold that Ms. Akers’ termination searches months before she gave birth fail to meet the basic threshold for admissibility. The termination searches were not probative of an intent to kill or harm a baby at delivery many months later. Ms. Akers’ contemplation of a protected right to terminate a pregnancy many months prior does not make the later existence of a specific intent to kill or harm a newborn more or less probable. Simply put, the predicate fact—lawfully contemplating the termination of a pregnancy—does not support the inferences advanced by the State—an intent, plan, or motive to kill or harm a person. The State’s argument begs the question of how Ms. Akers’ internet searches made it more likely that she had a homicidal intent toward a living newborn, unless one assumes that a person who researches abortion options is more likely to commit murder or harm a person.

The Supreme Court also stated: “Finally, the termination searches were not relevant to the collateral issue of Ms. Akers’ credibility.”

The Akers Court wrote:

In conclusion, we hold that the evidence that Ms. Akers contemplated terminating her pregnancy by conducting internet searches between six and nearly eight months prior to delivery was irrelevant, and therefore inadmissible. The termination searches were not probative of motive or intent to kill or harm a child. The predicate fact—lawfully contemplating the termination of a pregnancy—does not support the inferences advanced by the State—an intent, plan, or motive to kill or harm a person.

We similarly hold that, on these facts, evidence of Ms. Akers’ bare decision to forgo prenatal care was not probative of motive or intent to kill or harm a live child. Women forgo prenatal care for a variety of reasons, and without more, the failure to obtain such care is too speculative, ambiguous, and equivocal to support an inference that a woman would be more likely to harm a live child or prevent a live child’s access to medical care if such care was necessary. To the extent that the State has argued before this Court that Ms. Akers’ disparate prenatal care is relevant, given that this argument has been made for the first time before this Court, we decline to address it. Although we cannot say that a lack of prenatal care will never be relevant to any material issue, when presented with such evidence, a trial judge should examine the evidence very closely, including the reasons that the State seeks its admission, as well as any adverse immaterial inferences arising from gender stereotypes and implicit biases, and carefully weigh any probative value against the potential prejudicial and inflammatory effects.

We therefore reverse the judgment of the Appellate Court with instructions to that court to remand this case to the circuit court for a new trial.

There were concurring and dissenting opinions.  The dissent wrote in part:

A strong desire not to have another child—one that lasts from the beginning of the pregnancy until the moment of birth—is a motive to kill a newborn. Not wanting another child is also a reason to have an abortion. If a pregnant woman does not want another child, both an abortion and killing the newborn are means to the same end, albeit radically different means with different legal implications. When the abortion option is no longer available, and the pregnant woman perceives a continuing need to keep her pregnancy secret from everyone, including her husband, and she perceives no viable alternative due to real or perceived stigmas and disapproval by family members, then killing the baby immediately upon its birth becomes more probable. This is particularly so where the pregnant mother’s hope that the pregnancy will terminate on its own—abetted by the conscious decision to forgo prenatal care—is dashed.

To be admissible, social media evidence must be authentic, relevant, and its probative value must not be outweighed by the danger of unfair prejudice.  The Maryland Supreme Court has addressed a number of issues involving admissibility of social media.  “Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media (May 12, 2020).

____

[1] The Court wrote that: “We hold that evidence that a woman has forgone prenatal care, by itself, is ordinarily irrelevant to an intent to kill or harm a live baby at birth. It is too ambiguous, speculative, and equivocal to infer that a woman who forgoes prenatal care while pregnant is more likely to kill or harm a live human being. Women forgo prenatal care for a host of reasons that do not involve criminal conduct.”  It added: “Before leaving this topic, we reiterate the concern we expressed in Kilmon over the potential for state policing and prosecution of pregnant women for their conduct, including drawing incriminating inferences from said conduct.”

[2] As to summarization of ESI, see Is a “Composite” Video Admissible and Can a Police Officer “Narrate” It at Trial? – Part 2 of 2 – E-Discovery LLC (Sep. 1, 2024).